

Standing Committee F

[Mr. Joe Benton in the Chair]

Legal Deposit Libraries Bill - Clause 1 - DEPOSIT OF PUBLICATIONS

Question proposed, That the clause stand part of the Bill.

Malcolm Moss: Welcome once again to the Chair, Mr. Benton. Owing to the Licensing Bill, we have been seeing each other quite regularly recently. I even have the same Minister opposite me today as I did when we were in that Committee.
The heart of the Bill lies in the first sentence of the clause. It refers to a
“person who publishes in the United Kingdom a work to which this Act applies”.
Amendment No. 8, which was tabled by the hon. Member for Ipswich (Mr. Mole) to clause 9, would redefine and clarify the meaning of a publisher and published material.
On Second Reading, Conservative Members rode in behind what we thought was a consensus about the Bill. There was broad support from the parties that would be involved. We anticipated that the consensus would continue throughout the Bill’s passage in the House. At the eleventh hour, however, an important group of people who will be affected by the Bill—the publishers—did not consider that their serious concerns had been dealt with, nor did they believe that the amendments that had been tabled would deal adequately with those anxieties.
The main issue is how to define a publisher and published material, so that all the affected parties are of the same opinion about such matters. There has been an extremely good working relationship between the libraries and the publishers in the joint committee for voluntary deposits and the voluntary deposit scheme, which has been in action for some years. It has worked extremely well and all the parties to it are happy with the arrangements.
The Bill then comes along and raises all sorts of issues that hitherto had not been considered. The majority of proposed legislation tends to widen matters to a catch-all situation, which is what this Bill does. The problem for people outside the House is that if measures will affect their lives and livelihoods, they want to know in print—that is, in the Bill—exactly what they are letting themselves in for. They want their worries dealt with in the Bill. We are discussing generic legislation; it is an enabling Bill under which the Secretary of State can make regulations, and that is par for the course.

The problem is that the regulations are not even in print. They may be only a figment of the imagination of one or two hard-working officials at the Department. Who knows? They are certainly not available to us. Publishers and published material will be dealt with in the fine print of such regulations, and that is what the publishing community is worried about. The non-print media covers publications in microform or on diskette, physical media, such as magnetic tapes and discs, or optical discs, such as CD-ROM or DVD. They are primarily text based and intended more for information than as educational products.
The benefit of a Bill that limits itself to that sort of hardware, or offline type of publication, would be that it would mandate the terms of the existing voluntary scheme to which I alluded. Libraries have practical experience of operating it, albeit with a cataloguing backlog, and the technical issues have already been addressed. The publisher and library communities would be able swiftly to implement regulations to double the content currently being deposited.
There are a great number of problems and we will cover those in more detail as we get into the Bill and the amendments. There are several problems, both known and as yet unknown, surrounding the concept of deposit of online. That perhaps ought to be addressed separately, because there is real concern from the publishers that the in-depth consultation that is so necessary has not yet taken place. The consultation that has already taken place, which was important, sent out questionnaires to only a relatively small number of publishers. Only 22 respondees to that questionnaire are logged in the appendix.
However, the questionnaire that went out in the consultation process related mainly, if not totally, to offline products, and the bigger companies, which are very much involved in the online business, were not consulted at that time. It seems to have come as something of a surprise to many of them that their activities would be caught up with the Bill. The point of the questionnaire was to have a regulatory impact assessment but, by definition, if online deposit was not touched on at that time, it can have been only on a speculative, hypothetical basis as no trials of such deposits—that is, online—had actually taken place and major online publishers were notably absent from the list of consultation interviewees.
There are serious questions about the online publishing system. The nightmare of some worldwide online publishers is that they will become subject to a multiplicity of different national deposit schemes that would be costly and disruptive, and, in some jurisdictions, susceptible to abuse. The United Kingdom’s Legal Deposit Libraries Bill is probably one of the first in the world, although I understand that New Zealand has recently introduced a similar Bill. The hon. Member for Ipswich, who should be congratulated on bringing forward the Bill, is moving into uncharted waters as far as the international community is concerned. The Bill is in the van of ideas relating to legal deposit.

Many online publishers have contracts with the international business community and there is a fear that they may be jeopardised if the fine print of the Bill is not made available to them fairly soon. No doubt the hon. Member for Ipswich could set the Committee’s mind at rest on that, but perhaps the e-commerce directive, providing for exclusive country of origin regulations on online services, would in any event preclude the UK from trying to extend the deposit regime to online services available here, but originating from companies established in other member states. However, there is still some uncertainty whether the UK, under its international treaty obligations under the general agreement on tariffs and trade, would extend the regime on publications available in the UK from publishers based in countries outside the EU. In either case, there would be major complications and a great deal of controversy and resentment from overseas publishers and their Governments if the UK tried to impose a British deposit regime on publications from publishers established in other countries.
A large proportion of the content of services of many international online publishers is provided under licence from third party content sources based outside the UK. For example, there might be contracts with almost all the world’s stock exchanges to disseminate in real time their market prices globally in return for payment of per user fees for each subscriber choosing to receive price data from the stock exchange concerned. The service providers are prevented contractually from supplying price data to subscribers who do not pay the exchange’s end-user charges. We do not believe that the UK has the legal competence to override those contractual obligations, so we could be putting companies in breach of contract with the exchanges if they were required to supply the data free of charge to the libraries.
To extend the argument about online systems and businesses, we must have clear definitions in the legislation. The hon. Gentleman will promise that that will happen through secondary legislation, as clause 6(2)(g) states that the Secretary of State may
“make provision as to the circumstances in which works published on line are or are not to be treated as published in the United Kingdom”.
However, that is of little comfort to a business that deals in billions, and which is probably one of the most important industries that we have in this country. In terms of its earning capacity and the number of people it employs, it is bigger than the pharmaceutical industry. If we do not get the Bill right, and the regulations are not formed in a way that assists the business but rather diminishes or undermines it, we shall do a great disservice to the business and the country as a whole.
In order to progress that idea, when the hon. Gentleman responds, perhaps he needs to give a clearer indication than we have received hitherto that consultations will start in earnest with the business community to ensure that its concerns and fears are taken into account in the wording of the Bill. Perhaps the problem should be taken in stages: take what is offline to begin with and work on the basis of what has 

 already been agreed and worked on through the joint committee, and bring it online at a later date. That is one possible solution.
The time scale is short, and one of the problems with the Bill is that it appears to be being rushed. That is not an indictment of the hon. Member for Ipswich—he made the right decision in taking the Bill off the shelf and promoting it. Most of the people to whom I have spoken agree in principle that the Bill is an important piece of legislation. There is general agreement about its principles, but it is the nitty-gritty and the small print of the regulations that will impact on those involved.
I should like a promise that greater consultation will take place before we reach our discussions on Report and Third Reading. If time for that is not available, consultation should take place before the Bill finishes its passage in the other place. That would be helpful to the business community, which feels that serious concerns need addressing. It would welcome more detailed consultation with the hon. Gentleman and those who are helping him with the legislation.
Thank you, Mr. Benton, for giving me licence to use this opportunity. I have introduced some broad concepts, some of which will be addressed later under specific amendments. At the heart of the Bill is the requirement on publishers to deposit, so we must be sure clearly to define which publishers and which published material we are talking about. I hope that there might be some response from the Minister about a way forward that would satisfy everyone.

Mark Todd: May I at the outset declare a minor interest? First, I spent 20 years in publishing and I am very familiar with the subject of this Bill. Secondly, I acted as a scrutineer of the survey to which the hon. Member for North-East Cambridgeshire (Mr. Moss) referred. I did so on behalf of publishers and I received a small remuneration. I shall refer to the points that I made then. That was nine months ago, before I had seen the Bill and there was no real prospect of it emerging from the woods of possible handouts that lie around most Ministries.
As the hon. Gentleman made clear, we have to get this matter straight in the first clause as it sets down the core issues of the Bill. We need to understand what legal deposit is for. It is a system for ensuring that we have a corpus of information in our country that reflects our literature and information industry at that moment in time. It is there for future use by historians and others to gather a reflection of what we are saying, doing, thinking and writing then. That is its purpose.
It is also important to understand what its purpose is not. It is not to substitute for the normal process of acquiring information through, for example, a specialist library or purchasing a book from a publisher or subscribing to an online information provider. It is not to provide free access to what is often extremely expensive information.

I can give an illustration from my own experience. For a period, I ran a specialist database business that produced a product that described British science and technology expertise. It sold for £10,000 to business subscribers. That was in the early 1990s, which gives an idea of that in relative money terms. I would have been mortified if instead of paying that £10,000 to my business and thus support its development and future health, someone could pop into one of the deposit libraries and obtain that information for nothing. That illustrates the difference between the two purposes of the Bill.
Sometimes, there is confusion about the purpose of legal deposit. It is not about making information available to people freely because that is something that they should have as of right. It has a specific, narrow purpose. In that context, we have to recognise the specialist section of information providers who are deeply impacted by this legislation.
As I said, I spent 20 years in the industry. The fact that publishers had an obligation to deposit their product with the various copyright libraries, as we tended to call them, was a matter of no controversy whatever. It was a voluntary scheme. I am sure that the Minister will be told that there were some enforcement actions but I never knew of any, either in my own business or businesses I had dealings with and I was at a pretty senior level in the company by the end.
That is a monument of voluntarism in Britain, supported by statutory power. The statutory power is there to enable that voluntarism to function as well as it does between two groups of people—specialist librarians and publishers—to produce this corpus of information that we all value. We must therefore ensure that any steps we take do not harm that essential voluntary ethic. It must be seen as in the publisher’s or information provider’s interest to participate willingly in the exercise.
I do not think that the hon. Member for North-East Cambridgeshire knows the industry as well as I do, but he has learned some of the key points well. The critical issues include how the Bill will relate to dynamic products—in other words, products that change hour to hour, minute to minute and second to second—particularly, as the hon. Gentleman said, when the person involved with the information provision does not own the information and cannot speak for its use in quite the way that might be imagined in the Bill. They certainly cannot predict the precise usage that might be followed through by an individual library. The Bill therefore needs to define more sharply how it relates to that community and I have gently suggested that a way forward, at least pro tem, might be, rather like the hon. Gentleman suggested, to narrow slightly the focus of the Bill while we think a little harder about that sector.
That is enough of that part. I shall now deal with the second element. Incidentally, I did not publish a dynamic product. In those days, dynamic products were pretty scarce; they are much more commonplace now. However, it is still the case that if those who 

 publish very low volumes of a product have to give a copy to a deposit library, which makes it available relatively freely, they will find their market completely destroyed. We will just do away with those businesses in this country; they will go and operate somewhere else.
The business that I worked for and brought to reasonable health would have been one of those businesses. I would not have dreamed of running that business in a context in which I had to make such a product freely available to a wider information community without proper restrictions. I would have wanted at least to say, “I’m sorry. We’ll deposit the product now, but you will not be able to allow access to it for another 12 months, by which time I will have published a new edition, which will then be available to the people who are paying the money for it.” In that way, people would retain the right to the corpus of information, which reflects what information was provided at that time, but they would not be able to use it for commercial gain or other purposes, which a person dropping into a deposit library would be able to do without restrictions.
We also need to consider the restrictions that are already in place. Under the voluntary scheme, there is recognition of some very low-volume publishers and their needs and we need a proper definition of that. It may not need to be in the Bill, but it certainly needs to be clearly understood because otherwise we will just kill the sector stone dead.
It would have been nice if the Bill had gone back to first principles, although I certainly do not attach any blame to my hon. Friend the Member for Ipswich in that regard. The note that I prepared on that nine months ago says,
“this is surely an opportunity to reconsider the Legal Deposit scheme as a whole. What was its purpose ... Is that purpose still relevant? Is the shape of the scheme right in its balance between the responsibilities of publishers, the state and the end user? Are the current recipient libraries the right ones for the purpose defined?”
A little issue scooted across the horizon there, but I will not touch on it, because it has an element of controversy in it. I said that the reason why now was the time for a rethink was set out tangentially in the paper that I was considering, and that the scale of electronic delivery was already too large for the voluntary scheme to cope with.
People may not have seen that research, but I did. It was demonstrated that the library system was not coping with the existing voluntary deposit process, and we were loading an obligatory process of an unknown scale on top of that. How were we going to cope with that? Some estimates were prepared, which I must admit I entered some cautionary notes on. My note goes on to say that the value of cataloguing the data received is already implicitly thrown into doubt by the failure to address the problem today.
Secondly, I was interested in the remarks of the hon. Member for North-East Cambridgeshire on the lack of international perspective. Other countries have equivalent legal deposit schemes of some regard and we can learn from them. Thirdly, we have no indication of the perceptions of the users of the legal 

 deposit materials on this question. Who uses it, and what do they think? How do they use the materials, and how critical is instant access?
I would have liked a more fundamental examination of the thrust of the provisions, but I nevertheless welcome the Bill. I am delighted to help with its passage, but it would help if sharper thought was given to how some of the issues relate to the industry in which I have spent my working life. As the hon. Member for North-East Cambridgeshire said, it is one of our most important industries; it is quite disproportionate in scale to our nation’s trade. The crux of that is twofold. First, the English language offers us a huge advantage in providing resources for an information industry. Secondly, the strength of our financial institutions often provides a nexus for a large flow of information.
Those huge advantages have helped us to build a world-beating sector, and I was proud to have been part of it. I shall not make the apocalyptic statement that the Bill would destroy all that. No, it will not. However, it will make it harder for the voluntary principles on which the industry and the libraries that it worked with to operate. We should try to protect those principles within the Bill’s focus.

Kim Howells: First, Mr. Benton, may I say what a pleasure it is to serve on another Committee under your chairmanship, especially on the day that Liverpool was announced as the capital of culture. There will be much gnashing of teeth in the Room as a result. The hon. Member for Ceredigion (Mr. Thomas) shakes his head, but some people did not give Cardiff much thought.
I congratulate my hon. Friend the Member for Ipswich on promoting the Bill and I reaffirm the Government’s support for it. It represents an important step towards the safe keeping of our national intellectual output for generations to come. I welcome the positive approach taken by the hon. Member for North-East Cambridgeshire; it is consistent with his approach to most Committees of which we have both been members. He and my hon. Friend the Member for South Derbyshire (Mr. Todd) made some important points. We have a long way to go to reassure people, especially about the protection of intellectual property—a matter of enormous importance. As my hon. Friend said, we have a disproportionate input into the world economy; an awful lot of people are employed in the sector and in many ways we lead the world. We must not do anything to jeopardise that.
My Department has worked closely with my hon. Friend the Member for Ipswich, the British Library and the publishing community in the drafting of the Bill and the amendments. The principle of the Bill has received widespread support, but we were given notice of concerns immediately prior to and following Second Reading on matters of detail. If I may, Mr. Benton, I shall spend a little time discussing those concerns and outline how we have tried to respond, although the details of our response will emerge during our debates on the amendments.

At the end of March, my Department met the Digital Content Forum, which represents online publishers and representatives from the publishing industry, including from Reed Elsevier, Reuters, News International and other online publishers and others in the newspaper publishing industry. Those substantial and productive discussions have continued in smaller and more focused meetings, and have substantially informed the amendments that my hon. Friend has tabled.
Prior to the introduction of the Bill, the DCMS worked closely with the joint committee on voluntary deposits, which has been chaired by the British Library, and kept it closely informed on the Bill’s progress and on drafting the regulatory impact assessment. The joint committee comprised representatives from the deposit libraries, the deposit libraries’ agent and several publishing industry representatives, namely the Publishers Association, the Directory and Database Publishers Association, the Association of Learned and Professional Society Publishers, the Periodical Publishers Association Limited and others. They were warmly supportive of the aim behind the Bill of extending the print system to the non-print world, and were commissioned to provide an assessment of the costs and other quantifiable effects of the Bill. The report that Electronic Publishing Services provided was welcomed in the JCVD’s September meeting as an excellent piece of work. The chair of the committee recommended the report to my Department as an accurate and sensible study on 4 October 2002. In that correspondence with the Department, the chair added,
“JCVD believes that a strong case has been made that legislation on extended legal deposit will not be controversial, and that its implementation can be incremental and harmonious”.
Around the time of Second Reading, we were alerted to several concerns, which we shall discuss this afternoon. As my hon. Friend the Member for South Derbyshire said, some of those concerns are due to the rapid evolution of the world of non-print. The Bill recognises that fact and provides a flexible but enduring framework for capturing new publication media to ensure that they can be represented, albeit selectively, in the national archive. The Bill does that by establishing regulation-making powers. I am glad that the hon. Member for North-East Cambridgeshire has drawn attention to that because it is difficult to consider a Bill when those regulations do not exist—I have always found that, on whichever side of the Chamber I have been sitting. It is important that we debate that issue because the Bill is special in that sense, since we cannot draw up the relevant regulations until there has been an exhaustive consultative process.
I am also glad that the hon. Gentleman, along with my hon. Friend the Member for South Derbyshire, suggested that it may be a good way forward to focus more strongly on the least contentious part of Bill, which concerns the offline information—CD-ROMs, microfiche, and so on—and consult thoroughly and 

 work hard on drawing up regulations for online material, in relation to which there has been a good deal of concern and controversy.

Brian White: One of the concerns that gave rise to the Bill is that some material has already been lost to posterity. In the consultation period, will my hon. Friend ensure that the voluntary scheme that has been talked about looks to protect that material for the long term?

Kim Howells: Obviously, I cannot give my hon. Friend a guarantee that that will happen. He makes the important point—I have heard him make it before—that a great deal of material has already disappeared into the ether. I am worried about the amount of material that has been published online, which is almost a new medium, especially for academic publications. A great deal of valuable material has been published and subsequently disappeared. Although I would not like to make a judgment about what that has meant for the scientific or any other community, I believe that we should be concerned about it.
As my hon. Friend the Member for South Derbyshire pointed out, an enormous amount of information is published of an almost infinite variety and, depending on who might log on and pay for it, that information varies enormously in its value and cost. We will do our best to encourage all the stakeholders—if I may use that cliché—to ensure that important material is not lost to archives and future researchers while the Bill is under consideration.
The Bill will give the Secretary of State powers to make regulations relating to the deposit of different classes of published work in different media when it is appropriate to do so. At each juncture, we will need to find the correct balance between the legitimate needs of the national archive, which are likely to vary between classes of material, bearing in mind what my hon. Friend the Member for South Derbyshire has told us about the aim of developing a national archive, and the implications and costs for the businesses of publishers and other stakeholders.
Those issues will emerge and be discussed during the detailed consultation that will precede the implementation of any regulations. I understand the sense of unease that there may be in some quarters about the possible lack of consultation, but I give an undertaking to the Committee that detailed consultation will take place. The issues will be explored further through the regulatory impact assessments, which will be prepared for each set of regulations.
The Bill has been drafted in the policy context of the need to minimise the burdens on the deposit libraries and the publishers. It is important that we do not introduce legislation that would undermine the commercial viability of publishing organisations—that would be stupid in the extreme. The mechanism of enacting the provisions through secondary legislation, with affirmative resolution in both Houses, will allow us to proceed incrementally to explore such issues fully 

 before each set of regulations is made. I believe that that was the point made by the hon. Member for North-East Cambridgeshire.
The question of illegal use surfaces more readily with regard to electronic works. I was grateful to my hon. Friend the Member for South Derbyshire for giving us the benefit of his long experience in that area. That issue troubles me a great deal. Such illegal use could apply to a single product that has taken many years to put together, whether it be a database or a piece of scientific discourse. I know that the Patent Office does tremendous work in that area, but the Committee should also take the matter seriously. The publishing industry highlighted that concern and it is dealt with in new clause 1 on the use of non-print publications.
When making regulations, the Secretary of State will ensure that the necessary safeguards for accessing legally deposited materials are included, so that publishers can have full confidence in the security of the system. We must be able to guarantee that. We are also still considering how issues of liability and defamation can be satisfactorily resolved in the Bill. We intend to table an amendment on Third Reading to provide for that.

Mark Todd: I should like to illustrate further the complexities of the matter. One would interpret the legislation as applying to websites, which can contain contributions from a wide variety of sources for which one cannot vouch. That illustrates again how difficult it would be to put together arrangements that properly protect the person who provides the information, the person who makes it available to those who view it and the business that creates the sources of information.

Kim Howells: Yes, that is an important point. Mr. Benton, I am sure that you, like me, were given some very useful information when you first came to the House. I did not know, for example, that by simply sending a copy of a constituent’s letter to a third party, such as the police, MPs are in effect publishing the information in it, which may be defamatory. We could get into deep water on this issue and it is important to remember my hon. Friend’s point.

Chris Bryant: Notwithstanding that point, those who do research on a historical moment 50 years ago will get out copies of The Times and The Guardian. They will probably analyse the physical copies and have terrible asthma by the end of the day. [Interruption.] Yes, it might be on fiche, but it depends. A local newspaper is more likely to be the physical thing, but The Times and The Guardian are more likely to be on fiche. However, those who want to analyse the politics of last week at some point in the future will be unable to do so without, for instance, seeing what was on BBC Online. The BBC has no strategy for ensuring that such information is part of the intellectual moment and without it future historians who do their research about today will find it difficult to do a full and proper job.

Kim Howells: As someone who wrecked most of his middle years researching a PhD—[Interruption.] No, it was not on the French revolution. The period that I studied was 1937–57. It was very recent, but what I read probably bore little relationship to what actually occurred because I used official sources almost entirely. At their raciest, the official sources of the future might include the Hansards of this Committee, but there will be no mention of the bloodletting that may have occurred when my hon. Friend the Member for Ipswich pulled the Bill together.
I entirely understand what my hon. Friend the Member for Rhondda (Mr. Bryant) says. The issue will be difficult and we shall probably have debates about how to select the material because there has never been so much available. I dare say that some is trivial, but some is important. A researcher might be studying something that looks trivial now, but in 100 years, it might hold the key to understanding what this period is all about.

Simon Thomas: rose—

Kim Howells: I shall give way to the hon. Gentleman, who will probably quote to me the fact that the National Library of Wales—a great institution—has one of the great collections of pornography. Who is to say whether or not that pornography will be important in understanding what people were doing in the early part of the 21st century?

Simon Thomas: I think that I am grateful to the Minister for giving way, although I understand that the British Library actually has the best collection—not that I have seen it myself. However, I wanted to ask him into which category he would place MPs’ websites—the very important or the totally trivial?

Kim Howells: It is a good question. We are going off the point a bit and you will drag me back in a second, Mr. Benton. I always feel that MPs are in a privileged position. If we are any good, we talk to our constituents and receive their letters. If it is possible for us to enhance the richness of the information that comes to us from our constituencies, online means will provide future researchers with a great insight into the problems that concerned people at any point in time. I know that some hon. Members feel that their work is important enough to deposit their entire physical filing system at deposit libraries, while others of us have a clear-out every six months because we cannot believe that anyone would be interested in anything that we have ever said or written.

Richard Allan: That raises the question of who will be defined as a publisher for the purposes of the Bill. Will the Minister explain that? The historian of the future may want MPs’ websites from today, but who will define whether those MPs are publishers? By extension, people who do not think that they are publishers now may be so deemed in the future and required to provide their material to deposit libraries.

Kim Howells: That is an important question, and we will come to it more during the debates on the amendments. The short answer is that the definitions will be set out in regulations, and the hon. Gentleman will see that the Bill includes indications of how we will go about defining a publisher. However, like the hon. Member for Ceredigion, he is right to ask the question. Where do we put the limit on what someone can publish before they are defined as a publisher?
The great strength of online publishing is that we are not limited by having to get a printer, understand layout or provide the finances for publication. Important work can be published online, and it is an extremely democratic system that turns upside down our notions of what constitutes a publication or publisher. The hon. Member for Sheffield, Hallam (Mr. Allan) was right to raise a complicated question.
I am sure that the Committee will join me in thanking the publishers, deposit libraries and other stakeholders for their continuing support of the underlying principle of the legislation and their willingness to explore all the issues connected with the Bill. We will continue that active and productive dialogue with publishers and deposit libraries and look forward to its continuation after the conclusion of this Committee and prior to Report and Third Reading.
That support and debate will be more important than ever when it comes to the drafting of regulations and their implementation, so we intend to create an independent advisory panel, for which I know the hon. Member for North-East Cambridgeshire has called. It is an excellent idea, and I am sure that his amendment will detail a good outline of how we could establish such a body. The panel will include deposit library and publishing industry representatives and other stakeholders and experts to oversee implementation and help shape potential regulations.
The panel will carry on the initial work of the joint committee for voluntary deposit; it will be set up before the first set of regulations, and will assist in shaping them. The regulations probably will be restricted to offline material and draw heavily on the model of the voluntary system currently in place and agreed by deposit libraries and publishers. It is clear that the online world requires a more substantive consultation process to explore and address the complexities of the issues. In particular, we know that online publishers are concerned about cross-border issues, which we are seeking to resolve.
We will move slowly and carefully to create regulations that will, over time, serve to build the interests of the national archive in a selective, rather than comprehensive fashion, as is consistent with the complexity and size of the online publishing environment. We will ensure that there is a minimum burden on publishers and deposit libraries and that their concerns can always be taken fully into account. That is why we support the Bill.

Chris Mole: I, too, welcome you to the Chair, Mr. Benton. I also welcome my colleagues to the Committee for what I hope will be an interesting
 discussion of my Bill. There was enormous consensus on Second Reading about the importance of such legislation.
As we all appreciate, the world of new media publishing is fast changing and we are here today to discuss a Bill whose generic nature we consider to be the best way to tackle the issue. In fact, the practice of legislating for a legal deposit is not far behind the technological advances in publishing. A few weeks ago, as the hon. Member for North-East Cambridgeshire mentioned, the New Zealand Parliament passed the National Library of New Zealand Act 2003, which is designed to protect New Zealand’s most precious heritage items and to allow its library to operate with credibility in the electronic environment. That reinforces the point made about the international nature of much of the information, especially as we move into the online world with all the difficulties about the concepts of where ideas actually reside. I am encouraged by later amendments, which show how the Secretary of State can address some of those issues in due course.
As has been said, the process of a private Member’s Bill is, and will be, very different from the processes that the Government will pursue in setting out secondary legislation intended to address many of the points that have been raised. Indeed, much of the intention has been for that to unfold in various tranches that allow the different sorts of media to be addressed one at a time. Offline media will obviously be the first to be addressed. Some of the media with more complex difficulties, to which the Minister referred, will be dealt with later after even more extensive consultation. The Bill will create a credible approach to working in the electronic environment, as has been achieved in New Zealand.
The British Library and other deposit libraries have an enormous shared expertise in this area, which is respected throughout the world. The Legal Deposit Libraries Bill is essential for them to build on their excellent work of collecting and preserving print material by extending legal deposits to non-print material.

Simon Thomas: On that point, does the hon. Gentleman share my slight concern that the definition of the relevant material that needs to be collected as part of the United Kingdom’s archives will be decided by regulation and by a Minister or a Secretary of State? As he has just acknowledged, the expertise is based in the copyright libraries. What process does he have in mind, to which the Bill could lead, whereby some discretion and knowledge base could come into play that would allow librarians and archivists who have examined the material for a long time and voluntarily collected it to have some sort of influence on deciding what the crucial material is and who is a publisher? The Bill does not provide answers to those two questions.

Chris Mole: I thank the hon. Gentleman for that question, which goes to the heart of why it is better to address many of these issues through secondary
 legislation. Secondary legislation gives the Secretary of State extensive opportunity to identify all those interests and to hold the rein between them to ensure that no one party has a particular veto or ruling position on the answers to any of those questions, many of which will be thorny and difficult. That is why I have had to work very closely with the Department for Culture, Media and Sport, the British Library and as many representatives of the publishing industry as possible. I thank them for their continuing support.
Some important issues have been raised, especially since Second Reading. Even on Second Reading, I acknowledged the point that my hon. Friend the Member for South Derbyshire raised about the importance of high-value, low-volume publications. When we consider new clause 1 we should be able to see how that can unfold and reassurances can be given.
Clause 1 imposes a duty on publishers to deposit any published material with the legal deposit library or libraries that is or are entitled to receive a copy of that material in the medium in which it is published. It describes the types of printed material that must be deposited and provides that non-print works that are prescribed by regulations must also be deposited. There are no details in the Bill regarding the form of non-print materials because of the fast moving pace of change in the technology involved. The clause specifically addresses the issues of sound and film recordings, identifying the limited circumstances under which those will be covered. That is, of course, only when they are incidental features of the main body of a work and not its purpose. Both film and sound recordings will continue to be collected by the National Sound Archive.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2 - NEW AND ALTERNATIVE EDITIONS

Malcolm Moss: I beg to move amendment No. 10, in
clause 2, page 2, line 12, after ‘determined’, insert ‘by the publisher and’.
I shall be brief. As I interpret the Bill, the form in which information is to be published is to be determined in accordance with regulations made by Secretary of State. The amendment simply says that the publisher should be able to determine the form or medium in which he deposits that information. After all, the publisher has the costs. He has to spend time doing it and to make the arrangements. It seems not unreasonable that as long as the material is deposited in one form or another, the choice of the medium should be down to the publisher, not the library. It is up to the libraries to ensure that they can receive information in all sorts of formats rather than impose a format on a publisher that may involve them in additional costs and arrangements.

Simon Thomas: I just wanted to say a few words that are unfortunately in opposition to what the hon. Gentleman has just said. The danger in the
 amendment is twofold. First, it takes away from the librarians and archivists a decision about the best medium of preservation. That would worry me. I do not impugn for one minute the publishing industry, but it would be easy to opt for the cheapest medium to be deposited at the relevant legal deposit library rather than the best medium that might be useful for the long-term preservation of that material.
Secondly, and allied to that, a legal deposit library may have collected that type of material in a particular format for several years and made it available to readers in that format. For the publisher to insist on offering it in a different format, even though it is still available in the old format, would make it difficult for that library to deal with its readers. It would be difficult to make the material constantly available.
Let me give an example. This does not come under the aegis of the Bill but it is work that I used to do and it illustrates the point. If a library collects a video archive of the output of S4C on Betamax, it should be allowed to continue to do so on Betamax because it has the necessary machines to make that archive available to the public. If the publisher says that it must not be made available, or that it must be collected on DVD, that would put an extra strain on resources, storage, conservation and possible cataloguing.

Malcolm Moss: I am listening carefully to the hon. Gentleman, but agree with him only so far. Why should a publisher have to deal with the costs of returning to outdated technology just to satisfy a library that had not kept up to date?

Simon Thomas: I certainly accept that point. I do not think for a moment that the Secretary of State would allow regulations to exist that forced that on a publisher.
However, the clause relates to more than one medium. The same work might be published in several media; it might be available online, offline and in different digital formats. We know how much we have already lost. Indeed, it is curious that we can pick up a book that is 500 years old and still read and understand it, but we cannot pick up digital media that is five years old and still easily read or understand that. That is the difficulty in the Bill. Such issues must be thrashed out and the interests of the national archive must be paramount. I am not suggesting that we disregard publishers’ interests or do not consult them about the best usual medium for the deposit of work, but if the Bill is to mean anything, the information deposited under it must be available to readers in an easy format from libraries. It must be catalogued and available in a technologically suitable form.
Decisions about deposits should ideally be left to the Secretary of State who, as the hon. Member for Ipswich said, can draw a ring around those issues. However, placing the onus on the Secretary of State to come to an agreement with a publisher on every medium seems too great a centralisation of responsibilities, and suggests not enough trust in the system, or in our archivists and librarians to get it right—and they do get it right most of the time.

Chris Bryant: I rise to agree in large measure with what the hon. Member for Ceredigion has said—it is the first time I have ever said that, so I have broken my duck.
The word “medium” is used in the narrow rather than the broad sense. Most people think that medium means a book, a film, a play or an online publication. It is made clear in clause 9 that
“‘medium’ means any medium of publication, including in particular any form of on line or off line publication”.
Therefore, the technical standards necessary to access a particular work in a digital medium will be as important as the provision of the material in the first place. Clause 6(2)(b) will require the person
“to deliver, with the copy of the work, a copy of any computer program and any information necessary in order to access the work”.
None the less, it is important that the onus for ensuring access to work is on the publisher. If, for example, someone complied with the law by still providing copies of The Times in microfiche form, but in a microfiche form that was completely different from that which is used by almost every library in the world, they would be deliberately seeking to subvert the meaning of the law. That is why it is important that the onus for ensuring access to work should be on the publisher rather than the library.

Richard Allan: I wonder whether the primary purpose of the clause is to deal with situations in which something is published in printed form and on CD-ROM, and to resolve whether it is acceptable for a publisher to say, “Right. The legal deposit libraries will have the CD-ROMs, because that is cheaper for me.” In those circumstances, can the libraries insist on having the printed format, because that is the most acceptable one? I am trying to clarify whether we are dealing with those situations, rather than situations involving the technical choice between two different online formats, which is another matter that we would deal with in regulations about online formats. This is about judgments as to whether a publisher can say that they will provide the product that is cheapest for them to deliver, or whether a library can insist on having a more expensive format. In the context of the amendment, who makes the decision as to whether a library has the power to insist on the more expensive format? It would be useful if the Minister could respond to that point.

Kim Howells: That is an invitation that I cannot refuse. This is fascinating. We have had a short but good debate on an issue that is central in many ways. It is not appropriate for the publisher to have the final say as to the medium of deposit, as that medium may have implications for the libraries. I am thinking, for example, of storage. However, I have a great deal of sympathy with the argument of the hon. Member for North-East Cambridgeshire, and I want to reassure him that, before any regulations are made, including those that spell out the medium of deposit, publishers and other stakeholders will be fully consulted to ascertain what is best for all.
As hon. Members have said, since almost the first decade of the 20th century, a good voluntary system has evolved whereby common sense has almost always prevailed. I want the spirit of that to continue, certainly in the Bill, and the way to achieve that is by trying to ensure that a good arbitration system is set out in the regulations, so that the best solution to individual cases or quandaries is found without too much hassle. I am sure that that can be done.

Chris Mole: The purpose of clause 2 is to address the issue of duplicate publications, which was raised on Second Reading. It provides that it is not necessary to deposit a new edition of a work if it is substantially the same as one already published in that medium. Secondary legislation would detail the circumstances in which a work was considered substantially the same as a previously published work, and determine the medium of deposit where the same work was published in different media. However, it is thought that print will remain, as now, the preferred medium.

Chris Bryant: It is important that the iterations of certain works come into the archive. A classic example is Izaak Walton’s “Lives”, which changed every five years. The changes are just as important as the final text that we now know and that is published. Indeed, nowadays many publishers will publish several iterations. In the process of establishing the regulations, it will be just as important on occasion to ensure that different iterations of the same work, even though they are substantially the same, remain in the national archive.

Chris Mole: I thank my hon. Friend for that observation. Those are exactly the sorts of issues that will have to be thrashed out through regulations.

Simon Thomas: The hon. Gentleman mentioned regulations, and I should like to ask him about that. The matter raised by the hon. Member for Rhondda is of extreme cultural importance, but not so important in terms of intellectual property, which the Bill covers. I think that the cultural importance issue is overcome by the fact that libraries can buy extra editions if necessary. We are trying to protect intellectual property.
I want to ask about a particular proposal in the Bill. Regulations set out by the Secretary of State will frame certain matters, but we all know that there will be thorny issues that fall through the net or create problems. Is there an appeals system? What happens if nothing seems to work properly and a particular legal deposit library wants to get hold of a particular publication, and the publisher says, “No”? What sort of appeals system or arbitration could be used to decide such matters? Would it be the responsibility of the Department for Culture, Media and Sport or would it be decided elsewhere?

Chris Mole: I thank the hon. Gentleman for those two points, of which the second will be covered by clause 3.
With regard to the amendment tabled by the hon. Member for North-East Cambridgeshire, and given the commitments made by the Minister earlier, it is clear that there will be full consultation with publishers and other interested parties in the publishing community before any regulations are made in this area, and all representations will be given full consideration.

Malcolm Moss: I am grateful for the assurances given by the Bill’s promoter and by the Minister that full consultation will take place with the interested parties. In the light of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3 - ENFORCEMENT

Chris Mole: I beg to move amendment No. 1, in
clause 3, page 2, line 18, before ‘“the’ insert ‘in this section,’.
The amendment clarifies the meaning of the term “publisher”, and is necessary because of revisions elsewhere in the Bill. It is a technical amendment to make it clear that the definition of publisher in clause 3 is specific to that clause.

Simon Thomas: I was rather ahead of myself in asking this question earlier, so I will now return to it. I do not believe that my question on appeals and arbitration is provided for in clause 3, and there are no amendments to deal with the matter. However, I want it to be put on record that I would like the DCMS, the Minister and the promoter to consider the matter. We are discussing a statutory process in which, if a legal deposit library feels that someone has failed, there is a procedure for it to go through to ensure that it receives a copy of a publication or its equivalent.

Chris Mole: I hope that the hon. Gentleman appreciates that the Bill tends to focus on the publications rather than the publishers, but that in this clause the specific identification of the publisher is required. Elsewhere in the Bill, the intention is to retain as flexible an interpretation as possible, because of the questions raised earlier as to who constitutes a publisher, with reference, for example, to the websites of Members of Parliament.

Simon Thomas: I thank the hon. Gentleman for that point, which I accept, and to which I intend to return. However, the point that I tried to make earlier—

Joe Benton: Order. If the hon. Gentleman wants to discuss the clause, I suggest that he postpones his remarks until the clause stand part debate. At present, we are discussing amendment No. 1, and the proper procedure is for us to debate that amendment first.

Amendment agreed to.

Malcolm Moss: I beg to move amendment No. 11, in
clause 3, page 2, line 21, leave out subsections (2) and (3) and insert—
‘()If a publisher fails to comply with this section, he shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale and the fine shall be paid to the British Library Board or authority to whom the book ought to have been delivered.’.
This is a probing amendment, through which we seek clarification as to the meaning of some of the words in lines 29 and 30. The amendment sets out clearly that a criminal conviction will be the result of enforcement. I understand that in the past the matter has been dealt with in a civil court, but we were concerned that the words used in the Bill left the matter open ended. The question is whether the cost of making good the failure to comply is simply the cost as defined by the library, or whether it is the cost or the price of the material that is being held. The meaning is not clear from the wording. The amendment is therefore intended to probe for a clear definition of those words, as there are obvious implications for certain publishers. There would be enormous financial consequences for them if the clause was interpreted in the wrong way.

Chris Mole: We have listened to the particular concerns of publishers of high value material that is not sold in large volume—the sort of publishers to whom an amendment such as this might appeal. I assure them that a regulatory impact assessment will be carried out before regulations of this sort are made and that it will consider the economic impact on all publishers affected.
My hon. Friend the Member for South Derbyshire talked about the volunteer nature of the traditional approach. Since 1928, prosecutions have, of course, been brought under the 1911 Act, which shows the good will that can and should continue to exist. However, that should not distract us from the requirement to have an appropriate means of enforcement for situations in which that good will breaks down.

Malcolm Moss: I want to tie down the hon. Gentleman.

Chris Bryant: He was going to move off, not on.

Malcolm Moss: Was he? Well, I caught him just in time then.
What is wrong with the wording in the 1911 Act? The hon. Gentleman said that there had been no convictions, but did not tell us whether the reason for that was that the wording was no use. If, in the voluntary nature of events, it was deemed to be workable and sensible, why has he not replicated that wording in the clause? Why do we have new words? I am still waiting for a definition of the words in the Bill, because that is important to those who would be affected.

Chris Mole: We believe that a fine for the non-deposit of published materials at less than the value of the material being deposited does not serve as an
 incentive. We want an enforcement provision that is appropriate for the 21st century, rather than resting on the status quo of the 1911 Act.

Kim Howells: The hon. Member for North-East Cambridgeshire knows, and I know that he knows, that the fine currently enforced by the 1911 Act is £200. That was a fair wodge of money in 1911, and I imagine that if the hon. Gentleman had been a Member of this House in 1911, he would have stood up on behalf of publishers and said, “This is absolutely outrageous. We will see whole firms going bust if they have to pay out £200.”

Chris Bryant: He was probably here.

Kim Howells: He is not as old as me, and I was not here in 1911, so I do not believe that he was.
We resist the amendment mainly because we believe that a fine for the non-deposit of published material that is less than the value of the material being deposited does not serve as a sufficient incentive to deposit. There would be little point to such a fine with less responsible publishers, whoever they might be. It would be far simpler and cheaper for them if they did not believe in the wisdom of the system simply not to deposit and to pay a fine that was fixed at, say, £20. We should seriously consider the fact that if the financial penalty is not as expensive or more expensive than depositing the work, some people simply will not deposit it.

Malcolm Moss: The Minister is mistaken—he is younger than me, but we will not go into that. The fact is, however, that there have been no convictions under the 1911 Act, so things seem to be working pretty well, whether the fine is £200 or £2,000. The amendment refers to level 1 on the standard scale, and I am not sure whether that is £200. However, it is of that order, so we are not a million miles away from what is on the statute book.
I need, however, to press the Minister a little more. The Bill refers to
“the cost of making good the failure to comply”.
He does not think that that should be less than the value of the material, but people in the publishing industry have told me that some material can cost £100,000 or £200,000—huge amounts. Surely, we are not saying that the penalty for non-compliance should be of that magnitude—that would be ridiculous. There must be a limit somewhere, and I would like some indication of where it might be. The Minister or the promoter of the Bill may say that it will be set out in regulations, but the issue must be discussed fairly quickly with the interested parties. The Minister may be able to answer me now. If not, I shall withdraw the amendment.

Kim Howells: I shall try briefly to answer the hon. Gentleman. The amount of money should reflect the seriousness of the failure to deposit material that clearly should be deposited. I would be very surprised if the £200 fine had had no effect on publishers who did not want to deposit material. In the late 1970s and early 1980s, we discovered that it was a lot cheaper to
 publish books than booksellers had led us to believe. Publishers probably went along with the scheme because they saw the wisdom of it and knew that it was good for historians and archivists. However, £200 was also a hefty fine. Even in 1980, it would have been a lot to pay for a book that probably cost a few pence to publish.
The hon. Gentleman knows that we must be serious if we are to impress on the publishers who will be caught by the Bill the fact that the national archive is so vital—my hon. Friend the Member for South Derbyshire said that we should look at the reasons for continuing with it, but that is another debate—that every inducement should be offered to ensure that they deposit material.

Malcolm Moss: I thought that I had withdrawn the amendment before I sat down, but I return to what the Minister said. We recognise the fact that the fines should be a of a magnitude that makes sense and of which the industry takes note. I said that this was a probing amendment to ascertain the scale of the fines, which we do not know at this stage. As the Minister said, that will be determined through negotiation and consultation and set out in the regulations. It is important that we arrive at a sensible level. It may well be that valuable publications—particularly online stuff—do not fall within the definition of what must be deposited, but we will remain in the dark about what is caught by the Bill until we get the relevant regulations.

Andrew Lansley: I am sorry to delay my hon. Friend, who was concluding. Is he, like me, a little confused? He probably is not, so perhaps he can help me. On the face of it, the clause says that a court—a county court in England—can make orders requiring a publisher either to deposit or, under subsection (3), to pay a certain amount. Subsection (3) seems to deal not with a penalty but with a set of circumstances in which the publisher cannot comply with an order to deposit his publication. We are proceeding on a slightly curious basis in that in all circumstances such matters must result in a penalty.

Malcolm Moss: I thank my hon. Friend for his contribution. I had not thought of such matters in those terms. Under subsection (2), the court can order the publisher to comply. If there were no compliance with the order, I presume that the court would impose a fine. What would be the magnitude of the fine? It is not determined in the Bill. Instead, we are told that it will be determined in regulations.
It has been pointed out to me that some online published material is extremely valuable and is sold for large sums of money. At present, because there is nothing to say that that should not be deposited, those involved in that line of business are fearful that the definition is so open-ended that a huge penalty may be imposed on them if they do not comply. Moreover, they do not know whether they will have to comply as online businesses, as that is left to be determined in regulations.

Kim Howells: I want to give the hon. Gentleman some comfort. The hon. Member for South Cambridgeshire (Mr. Lansley) drew attention to line 28, which states,
“the court or sheriff may instead make an order requiring the publisher to pay to the library an amount which is not more than the cost of making good the failure to comply.”
I wish to reassure the hon. Member for North-East Cambridgeshire and publishers of high-cost, low-circulation and low-volume material who may be worried about the enforcement clauses and other publishers that the economic effect on the publishers of deposit will be carefully examined through the regulatory impact assessment. They will be consulted prior to regulations being made. I have been as clear as I can be. We are aware of such problems and we will consult the publishers.

Malcolm Moss: I am grateful—

Robert Jackson: Would it not be possible for the regulations to take account of the fact that the commercial value of much of the material is of limited time value? Public interest is in the preservation of records. The regulations should take account of the possibility of deposit after the commercial value is expired. Is not that a way in which to handle the problem?

Malcolm Moss: We have almost thrashed the matter to death. I am more than grateful for the Minister’s assurance. On the basis of that and the fact that economic costs will be taken care of, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Simon Thomas: We have a saying in Welsh: “Tri chynnig i Gymro”. It means three tries for a Welshman, so for the third time I shall return to a particular point. I do not want to bore the Committee, so I shall start from the other end. I have two worries about the enforcement clause, the first of which is about definition. My second concern is whether it is the best way in which to go about things.
There is no definition of “publisher” in clause 9, which deals with definitions. I appreciate that the Bill’s approach is on the basis of material. I welcome that. The difficulty is that the Bill will amend the Copyright Act 1911 and will introduce new non-print material. It is clear that we can take a materials base in respect of non-print material, but the situation is a little more murky when we mix the two together. That is presumably why the enforcement clause defines a publisher as a person who has asked for the publication in the first place via the legal deposit library. A person would be so defined by the fact that he had been requested to make the publication available, which is a strange third dimension to be in. I wonder whether the Bill would benefit from a little more clarity in the definition of a publisher for the purposes of print and non-print material.
My second argument relates to enforcement and goes back to my earlier point. At least in the early days, there will be uncertainty over what type of material is relevant for the purposes of the Bill. With the best will and the best set of regulations in the world, many publishers and libraries will be uncertain about which items are covered. We also have the slightly different position of the legal deposit libraries. The British Library gets some material of right that the other libraries have to request. They are entitled to it, but they have to request it. A publisher may be making its non-print material available, unaware that it may fall within the regulations, but then a request may come in from, say, Trinity college Dublin or the National Library of Wales, because it hears about it and considers that the material should be covered.
We should not have to go to law to sort out such matters. There should be a way of arbitrating within the regulations. The voluntary code does that. We are debating such matters without the regulations, so I am looking for assurances. There should be a stage of arbitration, decision making and mediation that will decide such matters before we reach a situation when a library, which is entitled to a publication, is demanding it and therefore putting the publisher before a Crown court or a sheriff court in Scotland. I want to hear assurances about that from the promoter of the Bill and the Minister.

Andrew Lansley: I do not want to hold up the Committee but, although the structure of the clause seems to be right, it might be helpful, if not now perhaps at a subsequent stage, if the hon. Member for Ipswich or the Minister would give members of the Committee a further explanation of the manner in which they foresee enforcement working. In our previous discussion, we were proceeding on the basis that people were issued with an order to comply with their obligations under the Bill and if they wilfully failed to comply, they would be subject to a fine. If they are failing to comply with a court order, there may be a process of fines. I do not know precisely how that would work, but that is not what the clause puts in place.
The clause is providing a separate mechanism by which a court or the sheriff in Scotland, instead of making an order to comply might, in the light of the circumstances, conclude that it is not practical to make such an order. Because of lack of knowledge, I am speculating over how that might work. For the sake of argument, let us say that the costs of requiring a publisher to produce another set of documents or online material would be prohibitively expensive. What may be necessary therefore would be to capture or purchase an existing publication of the series, which can be put into the archive as an alternative to republishing it.
Under those circumstances, the court can go to the publisher and require it to pay the amount that it will cost the library or libraries to secure that publication on the open market. Those are the circumstances that we are talking about. It might be expensive to do it in 
 that way, but it seems to be a reasonable basis for proceeding if the publisher has failed to meet an obligation.
That seems to be the structure, but that is not the basis on which we have been discussing matters. I am not sure that the Minister’s assurance about the regulations fits the bill, unless he is telling us that when regulations are being made about what publishers have to deposit with libraries by virtue of the Bill, regard will be had to the cost and availability of that published material so that publishers are not required to deposit material that would be prohibitively expensive for them to produce to do so. If I am setting out the Bill correctly, I will be happy with it. I just wanted to be sure, because it did not seem as though our previous discussion reflected that structure.

Kim Howells: I followed the hon. Gentleman’s argument with a great deal of interest because although the Bill is not mine, the flexibility that it includes seems to meet hon. Gentleman’s concerns. In particular, subsection (3) says,
“the court or sheriff may instead make an order requiring the publisher to pay to the library an amount which is not more than the cost of making good the failure to comply.”
That flexibility could well mean that there can be the system of arbitration that the hon. Gentleman properly seeks. It is always possible for the libraries and publishers to agree to go to voluntary arbitration if the publishers do not want to deposit. The libraries do not have to go to court immediately and even if they do, the court might choose not to order deposit under subsection (2), or payment under subsection (3). The court may decide that there is another way of approaching the problem. I hope that the hon. Gentleman agrees that that degree of flexibility could offer a way of continuing the sensible approach that has operated until now.
Although there may not have been any cases since 1928, there have certainly been disputes about what should be deposited and what has not been deposited. Generally, however, those disputes have been settled to the benefit of both sides.

Simon Thomas: If a publisher fails to obey a court order, will he or she be subject to any financial or other penalty?

Kim Howells: I should think that if I stood here and told the hon. Gentleman, “No, they wouldn’t”, whatever enforcement clout there might be behind the Bill would evaporate immediately. I would expect there to be a financial penalty substantial enough to ensure that the material that should be deposited is deposited.

Simon Thomas: That was my interpretation; that is, that the payment is an alternative to a court order and not the fine. In that case, could either the hon. Member for Ipswich or the Minister say how the decision about the exact sum of money will be made? Will that be through regulations or is it set out in another statute?

Kim Howells: It is not set out in another statute, but currently exists as a penalty of £200, which is based on the 1911 Act. As I am sure the hon. Gentleman will
 know, a refusal after a court decision would be a contempt of court. The party—individual or company—would then be liable to a fine or imprisonment. How much the sum to which the hon. Gentleman referred should be is and must be a matter for regulation. We must retain a degree of flexibility on that because matters will vary from case to case. As I told the hon. Member for North-East Cambridgeshire in an earlier debate this afternoon, I am keen that that flexibility should remain and that we should be able to proceed on a case-by-case basis. As the hon. Member for Ceredigion pointed out, there will be an infinite variety of material to be deposited. Given the importance of that material’s deposition, we must ensure that a degree of flexibility is available to those who arbitrate on what ought to be the proper level of the penalties imposed.

Richard Allan: On what happens if there is a contempt of court, the Minister referred to regulations. The Bill does not seem to suggest that regulations would deal with contempt of court. The Bill merely provides that if there is a failure to reach agreement and someone goes to court, the court will make an order. If anyone acts in contempt of that order, my reading is that it would be entirely up to the judge to decide what should happen. We do not say what should be the ultimate penalty; we have left it entirely to the legal authorities. I hope that that is the correct interpretation.

Kim Howells: Yes, indeed. That is a helpful explanation of what happens when contempt of court takes place. The amount to be paid under subsection (3) would be ordered by the court. The hon. Gentleman is right to say that we cannot fix that sum here and now.

Brian White: One difficulty that may arise is that it may not be the material to be deposited that is in breach but the retrieval systems through which it can be used. Will there be separate penalties for the material and the mechanism?

Kim Howells: That is a good point, and I am sure that my hon. Friend the Member for Ipswich will be able to answer it shortly. However, it raises a question similar to that raised by the hon. Member for Ceredigion. It is no good depositing material if the library and its readers or researchers cannot access it. The common sense and official arbitration system that have made the current system a success should continue.
The hon. Member for Ceredigion asked who is a publisher. I put it on record that we shall attempt to clarify that subject as well as the cross-border issues raised by the hon. Member for North-East Cambridgeshire before Report and Third Reading. The intention is to catch only material published in the United Kingdom and not material available in the UK—which would include everything on the internet. MP’s websites could be caught, and that may feature in early regulations.

Chris Mole: It was not my intention to do more than move that the clause stand part. My hon. Friend the Minister has, by and large, dealt with the many interesting, relevant and important points raised by hon. Members, who articulated effectively how the enforcement regime should operate. That leaves me only two things to say.
First, I hope that the enforcement regime operates primarily in a way that encourages deposits, and that it does not concentrate on imposing fines and penalties. Secondly, I draw the attention of my hon. Friend the Member for Milton Keynes, North-East (Brian White) to new clause 1(4) (b)(ii), which requires the deposit of computer programmes that allow access to the deposited material. I appreciate the sensitivities and difficulties associated with such a provision, but it is a necessary component of being able to read deposited material that would otherwise have no value. It should be treated in a manner equivalent to the deposited material.

Question put and agreed to.

Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 - PRINTED PUBLICATIONS: THE BRITISH LIBRARY

Question proposed, That the clause stand part of the Bill.

Chris Mole: The clause deals with the means by which the British Library board is entitled to receive copies of every work published in print. I take the opportunity to return to a point raised by the hon. Member for Ceredigion about the usual practice of deposit libraries of purchasing supplementary copies of publications to make them more widely available—when appropriate and with the publisher’s agreement. That regime will be extended in other clauses to act as a general approach. A copy of the printed publication must be delivered to the British Library within a month of publication, and that copy must be of the same quality as the best copies published in the United Kingdom at that time. The British Library board must provide a receipt for the deposited printed works received. The clause effectively replicates the provisions under the 1911 Act.

Question put and agreed to.
Clause 4 ordered to stand part of the Bill.

Clause 5 - PRINTED PUBLICATIONS: OTHER LIBRARIES

Malcolm Moss: I beg to move amendment No. 12, in
clause 5, page 3, line 2, leave out ‘is entitled to’ and insert ‘may request’.

Joe Benton: With this it will be convenient to discuss:
Amendment No. 13, in
clause 5, page 3, line 3, leave out ‘which it requests’ and insert—
‘The publisher may only refuse such request in exceptional circumstances where it considers on reasonable grounds that to comply with that request would be inconsistent with the criteria set out in section (Technical Advisory Committee) (4).’.

Malcolm Moss: This is a probing amendment to question whether we should continue the traditional and historic method, enshrined in the 1911 Act, of depositing to all deposit libraries. If we are to involve far greater numbers of people—publishers of all kinds of material, although this relates mainly to print publishers—should material in this day and age be sent to all libraries or just to the British Library and one or two other key libraries? Why do we have to replicate what is in statute?
I understand the argument that the receiving libraries will jealously guard their well-earned rights to material, but it places a cost on the publishing industry, which will escalate as the volume of material grows in future.

Simon Thomas: I rise to oppose fiercely the amendment. I am jealous of the rights and privileges of the National Library of Wales not only because I am a Plaid Cymru Member of Parliament, but because the library is in my constituency. Indeed, I worked in the library and I can see it from my house whenever I am at home.

Malcolm Moss: I am happy to intervene to assure the hon. Gentleman that I had no intention of involving the National Library of Wales in this.

Simon Thomas: In which case, I suspect the hon. Gentleman had Oxford and Cambridge libraries in mind. He can take that up with his hon. Friends, as more members of his party than of mine attended those august institutions.
I accept that the amendments are probing, but there are a few key points to be made about them. First, if the amendments were seriously considered, it would significantly weaken the 1911 Act. We must stop and ask ourselves why we would want to do that. From my discussions with the National Library of Wales, I am aware that it opposes the amendments and I know that they have not been discussed with the legal deposit libraries. We have heard a little about the importance of having discussions with publishers, but it is also important to have discussions with librarians. If these matters were discussed with librarians, they would be able to explain some good, as well as the purely patriotic, reasons for national institutions.
We need look no further than at what happened in Iraq with the desecration of libraries and museums in the last few days and weeks of the war to realise that libraries, institutions and learning are fundamental to our culture. They are a form of preservation and a practical means of ensuring that there is more than one copy of each publication in more than one place. The great library of Alexandria burned down and we lost all the knowledge that it had taken several hundred 
 years to gain. We therefore need more than one legal deposit library, and we need to consider where those libraries should be based.
The United Kingdom is made up of four countries that have come together—we have only to go to the Central Lobby to see the four saints representing those countries. It would therefore be reasonable to have four legal deposit libraries. There are also ancient institutions that have certain privileges that perhaps they should not have, but the Bill is not the place to start potching with Oxford and Cambridge. Those institutions deserve our consideration at another time.

Chris Mole: Does the hon. Gentleman accept that the hon. Member for North-East Cambridgeshire may have a genuine concern that although the deposit libraries in Oxford and Cambridge as academic institutions might have an interest in the purchase of some of the published materials, any crossover between other parts of those universities to make any of the deposit material more widely available would be inappropriate? Would he, like me, seek a reassurance from the Minister that the regulations would go someway to ensure that that never happened?

Simon Thomas: I thank the hon. Gentleman for that intervention. The hon. Member for North-East Cambridgeshire did not make that point. However, I accept what the hon. Member for Ipswich is driving at. I also accept that later new clauses give the Secretary of State powers to make regulations about access, availability and timing. He is right in that regard. Although Wales has only one, England has more than one legal deposit library. That is a slight anomaly, but why not? We have a system that has worked effectively for the best part of a century. It dates back earlier than that in the collection policies of these libraries. It has won international respect and has led the way to international standards for legal deposit libraries. It has enabled us to embody our myriad cultures in the United Kingdom.
For example, the National Library of Wales specialises much more in non-print materials, which are not covered in this Bill. It collects paintings, maps, prints and video output. It records all the television and radio stations. The National Sound Archive does a similar thing. It collects film. Neither the British Library nor the libraries in Oxford and Cambridge do that. I do not know about Trinity college in Dublin. Its status as a legal deposit library allows it to do all those things. It can buy the first photograph ever taken in Wales, which was of Margam castle, and preserve it for the nation.
Without the status that the 1911 Act gives the National Library of Wales it could not pursue those ambitions and aims, which reflect well on Wales, the United Kingdom and our culture as a whole. I accept that they were probing amendments but I hope that the hon. Member for North-East Cambridgeshire will accept that they were perhaps misguided.

Mark Todd: Briefly, as I touched on this in my earlier contribution, the selection of the deposit libraries reflects the United Kingdom as it was in 1911. One of them now lies outside the UK. It is one of these
 oddities that we gently pass over. I do not object to it but it perhaps raises the question why there is not an institution in Belfast that is regarded as suitable for exactly the recognition and on exactly the same grounds that the hon. Member for Ceredigion outlined.
Those who are familiar with this legal position will know that these issues and the special situation of Oxford and Cambridge have been juggled with and gently in the English way stuffed under the carpet for a while. The Minister may, as I do, still possess a library card for the Cambridge library. I suppose that I have an interest in its continuation. I would not wish to argue against the retention of those libraries but it is difficult to see how they can be justified in entirely rational terms. But I am not sure that we always make law in this House in entirely rational terms.

Kim Howells: We are having a go today!
I, too, hope that the hon. Member for North-East Cambridgeshire will see fit to withdraw his amendments. They would constitute a change from the current system of deposit for print, and there has never been any intention that I know of to do that. The print system works well, and there is no reason to change it. Let me say, as I have been challenged about this, that I would be loth to see the university libraries of Cambridge and Oxford losing their right, because if that had happened, I would have had to find another library when I was researching my PhD. It was nice to be able to go across the River Cam and sit there and do nothing week after week.
The case made by the hon. Member for Ceredigion is important. He raised an issue that may seem fanciful to some; I do not think that it is at all fanciful. Great institutions have been burned down and wrecked. We always assume that there will be copies if there are not the originals, but that is not always the case. The hon. Member for North-East Cambridgeshire will not like this, but he is over-egging the pudding in this respect. I do not think that it will cost the publisher a great deal more to send copies to various libraries.
We have to consider in regulations the problem of very high value and very low volume, which my hon. Friend the Member for South Derbyshire raised. There are volumes and great maps—the Mappa Mundi, for example—that do not exist anywhere else, but there are ways and means of ensuring that scholars and researchers can look at them. It should not be rocket science to come up with a solution to that problem. Indeed, there are many solutions already.

Simon Thomas: There is, of course, the solution that is already agreed between the legal deposit libraries, as I understand it, for publications that were available before the 1911 Act, or some that may have fallen through the net since that Act was introduced. There may be only one copy of a publication in, say, Aberystwyth, but by dint of various wonderful things the contents of it are available to the other libraries. It should be possible to tackle genuine cases of high-cost publications and low-volume ones even within the
 framework of this legislation, because entitlement does not mean that someone must have a copy. They can voluntarily choose not to take that copy. It must be possible to arrange for a copy to be available in one or two of the libraries and then, by means of a secure network or whatever, to be made available to all the readers.

Kim Howells: Yes, that is important. Hon. Members may have a problem with the fairness of the geographical spread of the libraries. Of course, if the Bodleian library wanted to move, it could go to the university of Glamorgan in Pontypridd, which would be about halfway between Aberystwyth and London. Perhaps I will come up with a proper suggestion on Report.

Malcolm Moss: We have had a fairly interesting debate. I would not be ruling out the other deposit libraries receiving material. The onus would be on them to make the request. The second part of amendment No. 13 says that the publisher cannot refuse a reasonable request unless certain conditions are breached. Those are set out in new clause 3.

Chris Mole: While the hon. Gentleman is dwelling on the second part of amendment No. 13, will he comment on the reference to section 9(3)(b)(ii) or (iii)?

Malcolm Moss: Yes, that is the obvious mistake and I am delighted that the hon. Gentleman has picked up on it. When we tabled the amendments initially, instead of referring to new clause 3, we referred to section 9, and I am afraid that the reference went through as section 9 instead of new clause 3. The details set out in new clause 3 are the subjects that the technical advisory committee should consider, which include regulatory impact, the UK base of the publication, proportionality, practicality and copyright protection. Those are the key issues. In amendment No. 13, we are saying that there should be no right to withhold compliance with the request to deposit the printed material, unless there are sensitive issues that are not met in the guidelines. We shall be discussing that a little later, but the Minister’s initial comments seemed favourably disposed to what we seek in new clause 3.
I apologise to the Committee for that error, but it has been rectified in the latest printing of the amendment paper, which now includes the phrase “(Technical Advisory Committee) (4).” We are saying that such material should be deposited as normal, with the proviso that sensitive situations are not covered. We shall come to that later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6 - REGULATIONS: NON-PRINT PUBLICATIONS

Chris Mole: I beg to move amendment No. 2, in
clause 6, page 3, line 20, leave out from ‘may’ to ‘works’ in line 21 and insert—
‘make regulations supplementing sections 1 and 2 as they apply to’.

Joe Benton: With this it will be convenient to discuss the following:
Amendment No. 3, in
clause 6, page 4, line 2, at end insert—
‘()Regulations under this section may not be made unless the Secretary of State has considered the impact of those regulations on persons who publish works of a description prescribed in the regulations.’.
Amendment No. 14, in
clause 6, page 4, line 2, at end insert—
‘(4)Regulations under this section shall contain appropriate obligations on the part of a deposit library, or person acting on its behalf, to maintain in place adequate technical and organisational measures to ensure the secure and confidential storage of the data and content to be deposited.’.

Chris Mole: Amendment No. 2 is a technical amendment intended merely to improve clarity.
With the Department for Culture, Media and Sport, we listened to publishers’ concerns about the economic burden of deposit; some publishers are concerned that they have a small market and deposit libraries can take a significant part of their output. We touched on that subject a moment ago. If the libraries could demand publications for free, publishers would suffer a big drop in sales, which might make it no longer viable to produce the item in question. Amendment No. 3 provides an explicit safeguard. In addition to a regulatory impact assessment, it would require the Secretary of State to consider the financial impact of regulations on those who would be affected by them. That should ensure that the financial viability of production of those products is safeguarded.

Malcolm Moss: I wish to speak to amendment No. 14. Clause 6 deals with non-print publications. We have already had some discussion on the subject, but the regulations have yet to be defined. We acknowledge and welcome the Minister’s repeated assurances of pretty well immediate, powerful and meaningful consultation with interested parties to get to grips with the regulations. Having sent non-print material to library—by offline communication such as a CD-ROM, or online in a way that has to be defined—it seems only fair and reasonable that the material, some of which will be sensitive and which will certainly be valuable, should not be capable of being hacked into through the computer resources of the library.
The amendment would provide that the library is responsible for ensuring full protection of the information communicated to it.

Simon Thomas: I am curious about what communications the hon. Gentleman has in mind. Publications are all public documents. What confidentiality can pertain to them?

Malcolm Moss: We do not know which online publications will be required to be deposited. Until the definitions of what online publications should be deposited are set down in regulations, we shall be in a grey area and shall not know. All that we are saying is that there may be valuable information that must go through under the regulations and it is only fair and reasonable that it should not be possible to hack into it.

Kim Howells: If I may try to help the hon. Gentleman, there could well be a time-limiting factor, as the hon. Member for Wantage (Mr. Jackson) pointed out. A high-value, low-volume item may be deposited in the period for obligatory deposition, such as a map of Iraq. That item could benefit someone who had managed to get a copy of it and published it widely, but there might be a detrimental effect on the publisher that had been required to deposit it at a library.

Malcolm Moss: I am grateful for the Minister’s helpful contribution. I am sure that sensitive, important and valuable online information will in the future be deposited. We are going to make regulations about access to that, which will normally be in a controlled environment in which someone with bona fides downloads and looks at that information on a computer. However, that information will still be there in the library—it will not move anywhere. That person doing research will be in a controlled environment and will not be able to take the information away with them, for obvious reasons. However, that does not mean that that library’s computer system could not be hacked into. That is a possibility, so the library has a responsibility to ensure that its systems are as modern and secure as is necessary to prevent confidential, sensitive and important information that might be deposited from being used in the way that the Bill is designed to protect against.

Kim Howells: I certainly appreciate the hon. Gentleman’s point, but if the Committee accepts new clause 1, as tabled by my hon. Friend the Member for Ipswich, obligations that are imposed on libraries with regard to use of and access to legally deposited material can be dealt with by regulations. I hope that with both that reassurance and my response to the point that the hon. Member for North-East Cambridgeshire made in support of the amendment, he will accept that both the Committee and the Government are well aware of the problems of security, which reflect much wider concerns about the protection of intellectual property. However, such concerns can properly be dealt with under the proposals in new clause 1.

Simon Thomas: I certainly appreciate the import of what the hon. Member for North-East Cambridgeshire is attempting to do with the amendment. However, I think that it focuses on only half of what we should consider, which is why the Minister is probably correct in what he said about new clause 1. The amendment is appropriate and I do not suppose that any archivists would have a problem with
 an obligation for secure storage and adequate technical provision. However, the other side of the coin is ensuring adequate availability and distribution of that material to readers. The new clause is perhaps stronger on that.
I still have a question. I certainly accept the need for security—material could be under embargo for six months, a year or however long, during which it should not be hacked into and must be secure. However, the use of the word “confidential” unguards me somewhat. The publications in question are all made available to the public, although one might have to pay £10,000 to get access to them, so someone who wanted to see them for free in the National Library of Wales would have to wait for 18 months. It is important to stress that there is nothing confidential about such material. We are not asking legal deposit libraries to collect material that is confidential or that pertains to an individual and might contravene the Data Protection Acts. The hon. Member for North-East Cambridgeshire is right about security and I hope that the Bill will deal with that matter. However, the use of the word “confidential” could make some librarians, whose job is to make material available to people who request it, somewhat unhappy in their posts.

Malcolm Moss: Amendment No. 14 says “confidential storage” rather than “confidential data”. Perhaps I did not need to use the word “confidential”; I could have used “secure storage”. “Confidential storage” implies that there is restricted access under the conditions that we know would obtain in a legal deposit library. However, I accept the hon. Gentleman’s point that it is the storage rather than the data that is confidential.

Simon Thomas: I accept that the hon. Gentleman is not attempting to shape or change the librarian’s job. I myself underwent a librarianship course and it was drummed into us that we should make information available to the public, that learning was for everyone and that although we were the guardians of knowledge, we should not prevent people from gaining access to it. I hope the hon. Gentleman will accept that that word might upset some librarians and archivists. However, I support the intention behind the amendment.

Chris Mole: I was not intending to comment on this matter, because I thought that the Minister had dealt well with the amendment. However, I agree with the hon. Member for Ceredigion that the word “confidential” is perhaps not appropriate. I hope that the hon. Member for North-East Cambridgeshire will be reassured by the assurances that we have given about the regulations that the Secretary of State will make on when material might be accessed after it has been deposited. There will be a period of “purdah”, when the material would not be generally available to readers, and if the hon. Gentleman’s concern is about the security of access during that period, the Minister and the libraries would certainly take that into account during the drafting of regulations.

Malcolm Moss: If the Minister assures me that new clause 1 could probably deal with that problem by means of regulations, I am happy to accept that, and therefore beg to ask leave to withdraw the amendment.

Joe Benton: Order. For the sake of good order, I should point out that the hon. Gentleman’s amendment does not have to be withdrawn, because it has not been moved.

Amendment agreed to.

Amendment made: No. 3, in
clause 6, page 4, line 2, at end insert—
‘()Regulations under this section may not be made unless the Secretary of State has considered the impact of those regulations on persons who publish works of a description prescribed in the regulations.’.—[Mr. Mole.]

Question proposed, That the clause, as amended, stand part of the Bill.

Richard Allan: I wish to raise a couple of points, which I hope will be clarified when we discuss the regulations. However, I put a marker down now, although we are not discussing the detail of the regulations but what will be contained within them.
I had two concerns about the clause. Subsection (2)(b) would require the delivery of a copy of any computer program necessary to access the material. The supplier of the content may not be in a position legally to deliver that computer program. It might be licensed from someone else, so they would not be able to hand over someone else’s copyrighted work. I hope that we will be sensitive to that issue. In the case of online material, the company that is providing an online news service has brought in the technology for delivering it from a third party and will not be able to provide it to the legal deposit library, even if they wished to.
Secondly, on access, a large amount of material may be delivered in an inaccessible format, unless libraries are prepared to put in a huge amount of work. For example, we referred earlier to the BBC Online website and the only sensible way to deliver it in the context of a deposit library is to mirror it. It will be hugely expensive to deliver one BBC News Online website, and it will be similarly expensive to deliver a second. Aside from the cost of producing the content, the cost of delivery is very high.
It will not be enough simply to deliver the technological platform on which the BBC News Online website is built and a feed of the content in raw form—the expensive bit is putting the two together to make a useable product. That will require the providers of the source material and the deposit libraries to co-operate closely, in a way that is not the case with print material. One can deliver a book, but there is no equivalent for online material. One cannot simply push a button so that something accessible drops out—the process is far more complex than that.

Brian White: Does the hon. Gentleman accept that that raises the issue of archival retrieval systems? Making a small investment in deposit libraries to
 provide such systems might solve many problems and might be better than dealing with them individually as they arise.

Richard Allan: I certainly concur with that. One hope is that we will develop common archival retrieval systems and common formats, which would make life a lot easier. However, at the moment, we do not have common formats. Some are evolving, and portable document format is freely available—one does not need to pay a licence fee to use it and one can create readers for it. That is all fine, but we should be clear about the fact that the Bill does not require someone who uses a non-standard format to carry out a further development, which might be as expensive as the original development, to deliver material. Such development may be in the public good, but it will not be in the interests of the publisher.
We are not dealing with the details of the regulations, but it is helpful to put on record that they should be framed in a way that encourages partnership. That will involve people moving towards common standards to comply with the Bill. It will involve carrots as much as sticks, although the stick element would worry me given the present state of the technology.

Simon Thomas: Of course, the hon. Gentleman is right, but the hon. Member for Milton Keynes, North-East made an interesting point about finance. We have a spread of legal deposit libraries that are financed by different institutions. The National Library of Wales is financed by the National Assembly, the National Library of Scotland is financed by the Scottish Parliament and the situation is different again at Trinity college in Dublin. That leaves us with a problem. The DCMS does not fund all deposit libraries, so we cannot simply roll out a funding programme to pay for archival retrieval systems. The hon. Member for Sheffield, Hallam is right to mention such things, but we must reflect on how we can help to implement them at the UK level. We need some leadership from the Department and the libraries, which must work together.

Richard Allan: I would love deposit libraries to become national and international centres of excellence for electronic archiving and retrieval. They certainly have huge expertise, but the hon. Gentleman is right that it will not be cheap to develop that further, as we will need to do if the Bill is successful in bringing in all this extra material. We must consider such issues in the context of how libraries are funded and how they develop the technical skills that will be required to deal with the massive volume of new work. Seeing them as centres of excellence is a positive way forward.
Libraries will deal with organisations from the very small—from the MP who writes their website in some obscure programming language—to the very large. Getting the co-operation that will be necessary for both sides to play their part will be a delicate operation, but the Bill does not make that clear. The fact that it makes things sound a bit too simple should sound an alarm bell. It seems that people will simply have to deliver the computer programmes and the 
 content, and everything will be okay. I simply want to flag up at this stage that those who draw up the regulations will be dealing with a complex issue on which detailed co-operation will be required.

Chris Mole: The clause sets out the terms and regulations for deposit that the Secretary of State can make in relation to non-print material. It is important enough for me to set out the purpose of the subsections.
Subsection (1) gives a general power to the Secretary of State to make regulations regarding the duty to deposit non-print materials.
Subsection (2) sets out the sorts of things that the Secretary of State may include in regulations, such as determining how and when a non-print publication must be deposited, the obligation to provide the information necessary to make the work accessible, the timing of the deposit, the means of delivery of the work, the quality of the copy, the format of a deposit where a work is published in different formats, determining when online publications are to be considered as published in the United Kingdom—an important issue that was touched on at the beginning of the debate—and specifying the medium in which the publication is to be delivered.
It will not be necessary to deposit works published before the necessary regulations are made, but I hope that the point that was made about voluntary arrangements continuing will address that concern.
The hon. Member for Sheffield, Hallam is right to stress the importance of the development of standards for format. Some of these are already being developed, whether through HTML or XML. I hope that the requirement to deposit a computer program may not be the general rule as much as the exception. I appreciate, however, that those exceptions will clearly involve difficulties, and I imagine that in certain circumstances the library will buy software directly if it is not made freely available. The hon. Gentleman gave the example of Adobe’s portable document format.
There are serious issues about inaccessible formats, and the library would not necessarily wish to mirror a whole website. Indeed, it would be an important part of the deposit policy of the libraries to determine whether they would take full functionality of a website or whether they would simply take a snapshot of a particular site to preserve the sense of what was available at a particular point in history.

Simon Thomas: Does the hon. Gentleman agree that, as I said on Second Reading, it is vital that the regulations that the Department draw up give sufficient discretion for librarians and archivists to exercise their discretion in exactly the way that he just suggested? I have been involved in collection policies for audiovisual material and taking a snapshot of different things at different times to give the overall view was precisely what we did. However, it was technically and physically impossible to collect every single thing. It is clearly beyond the capacity of any of the deposit libraries to collect every piece of information that appears on a very large website, such
 as the BBC’s, for example. However, it is important for someone who is clued up, such as an archivist, to know to collect not only the official BBC publication but also the views of the viewers as they are received. That is an archivist’s job.

Chris Mole: I certainly support the sentiment that there should be discretion, but that—

Sitting suspended for a Division in theHouse.

On resuming—

Chris Mole: I was telling the hon. Member for Ceredigion that I would support his principle that there should be discretion among librarians, but that they should use that discretion reasonably. I also wanted to reiterate the points made by the hon. Member for Sheffield, Hallam that libraries are already doing good work to obtain access to materials held on discontinued systems. I give the example of the work that has just been completed by the British Library on the BBC Domesday project videodisc. Using its own resources, it has ensured that a format that is no longer accessible could be made available once again to the public. That touches on the point about funding. Funding to allow such work to continue is important. I draw the attention of the hon. Member for Ceredigion to the requirement in the regulations that the Secretary of State should consult with the National Assembly and the Scottish Executive to ensure that such regimes are appropriately put in place.

Question put and agreed to.

Clause 6, as amended, ordered to stand part of the Bill.

Clause 7 - ACCESS TO AND PRESEVATION OF NON-PRINT PUBLICATIONS

Question proposed, That the clause stand part of the Bill.

Joe Benton: With this it will be convenient to take the following: New clause 2—Use of non-print publications: copyright etc.
‘(1)In Chapter 3 of Part 1 of the 1988 Act (acts permitted in relation to copyright works), after section 44 insert—
“44ALegal deposit libraries
(1)Copyright is not infringed by the doing of anything in relation to relevant material permitted to be done under regulations under section (Use of non-print publications) of the Legal Deposit Libraries Act 2003 (in this section, “the 2003 Act”).
(2)The Secretary of State may by regulations make provision excluding, in relation to prescribed activities done in relation to relevant material, the application of such of the provisions of this Chapter as are prescribed.
(3)Regulations under subsection (2) may in particular make provision about—
(a)anything done by prescribed descriptions of reader,
(b)anything done in relation to prescribed descriptions of relevant material,
(c)prescribed descriptions of activities done in relation to relevant material,
(d)such descriptions of such activites done other than in accordance with conditions prescribed in the regulations.
(4)Regulations under this section may make different provision for different purposes.
(5)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursaunce of a resolution of either House of Parliament.
(6)In this section—
(a)“reader” and “relevant material” have the same meaning as in section (Use of non-print publications) of the 2003 Act;
(b)“prescribed” means prescribed by regulations made by the Secretary of State.”
(2)In Part III of the Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032) (database right), after Regulation 20 insert—
“Exceptions to database right: deposit libraries
20A.(1)Database right in a database is not infringed by the doing of anything in relation to relevant material permitted to be done under regulations under section (Use of non-print publications) of the Legal Deposit Libraries Act 2003 (in this Regulation, “the 2003 Act”).
(2)Regulations under section 44A(2) of the 1988 Act exclude the application of paragraph (1) in relation to prescribed activities in relation to relevant material as (and to the extent that) they exclude the application of section 44A(1) of that Act in relation to those activities.
(3)In this Regulation, “relevant material” has the same meaning as in section (Use of non-print publications) of the 2003 Act.”.’.

Chris Mole: Clause 7 is thought to be too permissive and so will be replaced by two new clauses that will be considered shortly.

Simon Thomas: I welcome the replacement of clause 7 by new clauses 1 and 2. The new clauses are more precise, clearer and give a better steer, but there is one problem, although I do not know whether it is due to poor drafting or because it was overlooked.
Clause 7(2)(a) mentions the right of a deposit library, or a person acting on its behalf, to copy relevant material
“for the purposes of preservation”.
Therefore, the Bill as currently drafted makes the purpose of preservation a legitimate reason for copying material. However, there is nothing as specific in either new clause—I know that we are considering new clause 1 later, but it is relevant because it also covers the current field of clause 7. We must remember that a main job of librarians and archivists is to preserve material, not for the sake of putting it in aspic, but to make it available for future generations. That is the purpose of preservation, and I do not want us to hem in future archivists and librarians by not giving them the explicit right to copy for the purposes of preservation.
Without that right, there could be some difficulty if someone starts to feel bolshie about the fact that several copies are being made of legally deposited 
 material. They may feel that that is infringing their rights as publishers or that their understanding of the agreement and regulations has been subverted by the library or institution in question. There will be no problem if the institutions have the defence of copying for reasons of preservation, but the new clauses do not make it as clear that a librarian or archivist can copy non-print material simply for the purposes of preservation. I want the assurance that the new clauses will not make it difficult for someone working on behalf of a legal deposit library to do that.
To emphasise the point about the material, it is not sufficient to say that a readers’ copy can be a preserved copy as well, as there is more to preservation than that. It is a little about aspic and keeping the article in its cultural context, but also about making the material available in a sensible and understandable way to the readers, academics and researchers of the future. I hope that we will get some assurances that the new clauses do not contain any diminution in the rights of copying and replicating non-print material simply for the purposes of preservation.

Malcolm Moss: I was reading new clause 1 as the hon. Member for Ceredigion was speaking. Proposed new subsection (4)(d) contains the words that he is looking for. It says that
“references to using relevant material include references to copying it and, in the case of a computer program or database, adapting it.”
It does not use the word “preservation”, but if the material is copied, then people can do what the heck they want with it after that. That provision probably covers the point.
I seek your guidance, Mr. Benton. We are discussing only new clause 2, not new clause 1 as well, which is to be debated later. Is it appropriate to cover new clause 1 at this stage? I did not realise that both replaced clause 7.

Joe Benton: Strictly speaking, the hon. Gentleman is right. We are discussing only clause 7 stand part and new clause 2. To discuss new clause 1 would be out of order.

Malcolm Moss: I retract, then, what I said about new clause 1.
I want to ask one question of the hon. Member for Ipswich. Why has he seen fit to amend the Copyright, Designs and Patent Act 1988? New clause 2 will amend section 44 of the 1988 Act by inserting a new section relating to legal deposits. Similarly, the new clause will amend the Copyright and Rights in Databases Regulations 1997. An explanation of why that was done would be helpful to the Committee.

Linda Perham: On a general point, my hon. Friend the Member for Ipswich said on Second Reading that some publishers had expressed concern about clause 7. The hon. Member for North-East Cambridgeshire talked at the beginning about the Bill being rushed through, but this clause is an example of my hon. Friend and those he has consulted making an effort to address the concerns of everyone involved, in particular those of publishers.
The hon. Member for North-East Cambridgeshire and my hon. Friend the Member for South Derbyshire, who has been involved in the publishing industry, made strong points about publishers. I also commend the hon. Member for Ceredigion—a fellow librarian—for making such a good case for libraries and archives. Those of us who have worked in either profession have what is not quite a love-hate relationship, but an interdependent one, much like that of architects and engineers. By the time we have substituted new clauses 1 and 2 for the current clause, it will be shown that there has been great effort to come to terms with the concerns of everybody who wants the legislation to be passed.

Kim Howells: In response to the hon. Member for Ceredigion, an answer was provided by the hon. Member for North-East Cambridgeshire: the powers under new clause 1 will enable regulations to authorise copying for the purposes of preservation. However, the questions of the hon. Member for Ceredigion went a little further than that, and we will certainly reconsider the matter to see whether things can be further clarified, as we are talking about an important and valuable function.
The new clause is necessary because much of the use of legal deposit material may be delivered by regulations made under its provision. That will involve acts that ordinarily might infringe copyright and/or database right. New clause 2 inserts a provision into part 1 of the Copyright, Designs and Patents Act 1988, namely copyright law, and into the Copyright and Rights in Databases Regulations 1997, which govern database right. New clause 2(1) provides that anything that is permitted by regulations made under the clause relating to non-print publications will not infringe copyright or database right.
Copyright policy is a matter for my colleagues in the Department of Trade and Industry, and it is extremely important that they are consulted on the scope of regulations made under new clauses 2 and 1, given that the new exceptions effectively remove restrictions imposed by copyright and database right. I know that they will want to ensure that only uses that do not unreasonably prejudice the legitimate interests of publishers will be provided for by regulations. Our aim is to ensure that regulations on use do not unfairly threaten publishers’ commercial interests.
The measures, namely exceptions to copyright and database right, will provide that doing anything that is permitted through regulations on use of non-print publications made under this Bill will not infringe copyright or database right. Additionally, any regulation-making power is included under proposed new section 44A to enable the Secretary of State to make regulations that turn off exceptions to copyright in relation to the relevant material.

Andrew Lansley: While the Minister is on the order-making power in new clause 2, I note that on Second Reading he said that the intention was that regulations made under the Bill would be on an affirmative basis, but that it was intended that the regulations resulting
 from new clause 2 would be put into the 1988 Act on a negative basis. That is inconsistent. I wonder why he did that.

Kim Howells: If that were to be done on an affirmative resolution, it would imply that the changes are of greater consequence that those that I envisage being made under the changes to the current legislation that we are discussing. The hon. Gentleman is correct to raise the matter, but if he believes that by applying a negative resolution to the changes we are not giving them the importance that he thinks should be attached to them, perhaps he could explain why.

Andrew Lansley: Although we have not discussed new clause 1, it is closely connected with new clause 2. In so far as new clause 1 might prescribe activities that could be applied to the relevant material, for copyright purposes there may be reasons why certain activities might or might not be allowed to happen, and those may have substantial intellectual property values associated with them. That might be the most valuable part of the proposed regulations.
From the point of view of protecting intellectual property, the two kinds of regulations—those made under new clause 1 and those made under new clause 2—would have to be read together, so the libraries are allowed to undertake a wide range of activities with protections built in for copyright purposes. If those are seen together, should not they both be exercised through the same order-making power?

Kim Howells: I have missed that and I shall consider it. The hon. Gentleman raises a good point. We need a degree of consistency. My only excuse is that in drafting the Bill—well, I did not draft it, my hon. Friend the Member for Ipswich did—it is easy to miss such inconsistencies. I certainly undertake to look at that.

Malcolm Moss: Before the Minister passes the blame to somebody else—[Interruption.] On new clause 2 and the implications for the 1988 Act, the Minister said that this was the prerogative of the DTI and that it will be showing an interest in things. I do not think that that is strong enough for the Committee. Can the Minister reassure us that the matter has been cleared with the DTI and that it fully supports it? Otherwise, we might agree something in Committee that runs counter to another Department.

Kim Howells: I reassure the hon. Gentleman that my hon. Friend the Member for Ipswich has talked to DTI officials, who are fully on board. The hon. Gentleman has put his finger on it: various Departments are involved in this part of the Bill. I assure him that we are working closely with the DTI.
The power is needed to ensure that there is a fair balance between publishers and readers. For example, regulations could be made to ensure parity between the rights the deposit library or reader can exercise in relation to a deposited work and the rights they could 
 exercise over a work that has been purchased commercially. I am sure that the Committee will be interested in those important points.
It is most unlikely that the regulations under copyright law would be made at the same time as regulations under the Legal Deposit Libraries Bill. The copyright regulations provide a safeguard for publishers. I know that the hon. Member for South Cambridgeshire has much expertise and interest in that area.

Question put and negatived.

Clause 7 disagreed to.

Clause 8 - REGULATIONS: SUPPLEMENTARY

Malcolm Moss: I beg to move amendment No. 15, in
clause 8, page 5, line 19, leave out subsection (7) and insert—
‘(7)Regulations under this Act may not be made unless the Secretary of State has consulted the Technical Advisory Committee in accordance with section 9(3) and he is satisfied, and the Technical Advisory Committee has advised him that it is satisfied, that the Regulations—
(a)are proportionate to what is sought to be achieved by them in respect of the preservation of the national intellectual archive;
(b)are practicable and not excessive for the publisher required to comply with those Regulations; and
(c)do not conflict with the normal exploitation of any work, or category of work, to which this Act applies or would unreasonably prejudice the legitimate interests of the owner(s) of the copyright or any rights of a similar nature in any such work;’.

Joe Benton: With this it will be convenient to discuss the following:
New clause 3—Technical advisory committee—
‘(1)There shall be a Technical Advisory Committee consisting of such number of persons appointed by the Secretary of State as he may by order provide.
(2)The order providing for membership of the Technical Advisory Committee must make provision calculated to ensure that the Technical Advisory Committee has sufficient powers to enable it to oversee the operation of the deposit of publications as provided under this Act.
(3)The order providing for membership of the Technical Advisory Committee must also make provision calculated to ensure—
(a)that the membership of the Technical Advisory Committee includes persons likely effectively to represent the interests of publishers and deposit libraries;
(b)that the membership of the Technical Advisory Committee includes persons with the appropriate breadth of technical and business skills and experience;
(c)that such other person(s) if any as the Secretary of State thinks fit may be appointed as members of the Committee;
(d)that the Committee has an independent chairperson;
(e)that the Committee is constituted as to produce a balance between the representation of the interests of publishers and deposit libraries;
(4)Where the Secretary of State proposes to make any Regulations under this Act, or if the Technical Advisory Committee considers it timely and appropriate for the Secretary of State to make any Regulations under this Act,
(a)he shall consult the Technical Advisory Committee about the consequences of the making of any such Regulations for the deposit libraries and for the publishers that may be affected by those Regulations;
(b)the Technical Advisory Committee shall consult with the deposit libraries and with the publishers likely to be affected by those Regulations;
(c)he shall commission the carrying out of a Regulatory Impact Assessment following the consultation as mentioned in Subsection (4)(b) above, to assess the costs of compliance, technical feasibility and the impact of any Regulations on publishers’ legal and contractual obligations;
(d)the Technical Advisory Committee shall, inter alia, consider—
(i)the technical requirements and the financial consequences, if any, for the deposit libraries and for the publishers likely to be affected, of those Regulations;
(ii)whether the way in which those Regulations make provision as to the circumstances in which works published on line are treated as published in the United Kingdom is such as to exclude works that are accessible from, but not also published in, the United Kingdom and to exclude works that are not made available to the public;
(iii)whether the requirements under those Regulations are proportionate to what is sought to be achieved by them in respect of the preservation of the national intellectual archive;
(iv)whether the requirements under those Regulations are practicable and not excessive for the publisher required to comply with them and whether they impose a method of deposit that causes the least burden to the such publisher; and
(v)whether the making of any such Regulations, or any part of them, would conflict with the normal exploitation of any work, or category of work, to which this Act applies or would unreasonably prejudice the legitimate interests of the owner(s) of the copyright or any rights of a similar nature in any such work.
(5)The Technical Advisory Committee shall report their conclusions on those matters to the persons mentioned in subsection (3)(a) and to the Secretary of State, and the Secretary of State, after considering any report of the Technical Advisory Committee, may either—
(i)withdraw the proposed Regulations; or
(ii)proceed with those Regulations subject to such modifications as the Secretary of State sees fit in order to take account of the conclusions of the Technical Advisory Committee as stated in any such Report.’.

Malcolm Moss: We have already touched on the substance of the amendment in our opening debate. It is important, particularly in respect of the relationship between the libraries, the publishers and the Department for Culture, Media and Sport. Subsection (7) refers to regulations that the Secretary of State may bring forward, but only if he or she has first consulted the deposit libraries and, more importantly given the worries that have been raised,
“the publishers appearing to the Secretary of State to be likely to be affected.”
Amendment No. 15 would firm up the consultative relationship in two ways. First, it would put the advisory committee, the body that will develop from the joint committee on voluntary deposits, into the Bill. Secondly, the amendment highlights two critical areas that are fundamental to the publishers’ rights, such as proportionality. It refers to the Secretary of State being satisfied that the regulations
“are proportionate to what is sought to be achieved by them in respect of the preservation of the national intellectual archive”.
That wording was lifted almost verbatim from the Regulation of Investigatory Powers Act 2000, which refers to proportionality in a way that might help draftsmen incorporate it into the Bill.
We are not asking for something that is not already on the statute book. Section 22(5) of the Act states:
“The designated person shall not grant an authorisation under subsection (3), or give a notice under subsection (4), unless he believes that obtaining the data in question by the conduct authorised or required by the authorisation or notice is proportionate to what is sought to be achieved by so obtaining the data.”
Similar words applied to clause 8 of the Bill will give the assurance that publishers seek.
Amendment No. 15 refers to the Secretary of State being satisfied that the regulations
“do not conflict with the normal exploitation of any work, or category of work, to which this Act applies or would unreasonably prejudice the legitimate interests of the owner(s) of the copyright or any rights of a similar nature in any such work”.
It concerns anything that might prejudice the economic viability of the publishing organisation. There is similar wording in the Copyright, Designs and Patents Act 1988, section 137 of which states:
“If it appears to the Secretary of State with respect to a scheme or licence to which this section applies that ... making them subject to the scheme or licence would not conflict with the normal exploitation of the works or unreasonably prejudice the legitimate interests of the copyright owners”.
We have taken wording from existing legislation that protects the two key issues of proportionality and copyright benefit and included it in amendment No. 15.
We are talking about regulations that may or may not be brought forward by the Secretary of State.
New clause 3 would define the committee, which is a group of people whom the Department will consult and includes the publishers and the libraries. It is an extension of the excellent work that those bodies have already done in bringing forward the Bill. New clause 3 defines a technical advisory committee. The Minister said earlier that he takes on board the need for the consultation and the immediacy of it. It is to be hoped that in response to the amendments he will go into more detail about how he sees that moving forward.
The important thing about new clause 3 is not so much the composition of the committee or the fact that it will be consulted on certain issues, but that it points up the key areas that need to be discussed. They are outlined under proposed subsection (4)(d)(i) to (v) and relate to a regulatory impact assessment, particularly on online publication. The need to define UK based authorship or origination has not yet been decided. Subsection (4)(d)(iii) concerns proportionality and paragraph (iv) is about practicality and the fact that the regulations will not be excessively heavy on the publishers. Paragraph (v) is about copyright protection, which I have already dealt with. Those are the key areas that must be discussed.
We want the Bill to recognise the importance of the committee. Hence, our new clause and amendment No. 15. We understand that there are “technical problems” with doing that, because of Treasury and cost implications. No doubt the Minister or the Bill’s promoter will explain that to us. We are looking for 
some movement from the promoter towards the publishing community in respect of those key issues. If it can obtain assurances on some of those issues, particularly proportionality and copyright protection, many of the community’s fears and concerns will abate. We have reached an important stage. If we can confront such issues—perhaps not this afternoon, but before the Bill is discussed on Report—we have every chance of making good legislation, which is what we all want.

Kim Howells: I stated earlier that I considered the hon. Gentleman’s amendment on constructing an advisory committee to be a helpful guide to how best such a vital job may be carried out successfully. I thank him for drafting it. While I am in favour of the existence of an advisory committee, I do not believe that it should be constituted in primary legislation. If that were done, it would effectively reduce the flexibility of the committee and the Secretary of State. Given that every effort has been made to future proof the Bill, I believe that the proposal would be counter-productive.
The constitution of the committee and its functions may need to change over time, sometimes quite radically. I assure the Committee that the Government are intending to establish such a panel to advise the Secretary of State on drawing up regulations relating to legal deposit and subsequent implementation. Such a panel will be made up of representatives of the publishers and the deposit libraries as well as other key stakeholders. However, to enable it to operate in the ever-evolving world of non-print publication and to continue to represent those bodies with an interest in the legislation, we do not consider that the committee should be established in primary legislation. It is also important that some consultation takes place with interested parties that might not be represented on the advisory panel. The existing provisions are preferable to the proposed amendment.
New clause 3 would constitute a technical advisory committee in primary legislation. The hon. Gentleman obviously does not agree with me, but I believe that it is an inflexible solution to what could and should be achieved flexibly. It would constitute an advisory panel in the same way in which the advisory panel on Crown copyright was constituted. Doing that in the Bill would leave no opportunity to put things right if it was found that the committee, as originally set up, did not work for whatever reason. The libraries and the publishers would have to live with it until primary legislation could change it. That is why my Department advocates maximum flexibility. We believe that it is right that there should be some good consultation with interested parties before the committee is established and its terms of reference fixed. There would be no opportunity for such consultation if the new clause was accepted.
As I said, I wholeheartedly support the setting up of a committee or a panel to advise the Secretary of State on drafting the regulations. However, the committee must be given every opportunity to be a success and 
should not be limited through any inflexible legislation. I am fully aware of the difficulties of legislating on the online environment, so expect there to be extensive consultation with the committee and elsewhere in excess of the usual 12-week consultation period before any regulations are prepared to deal with the online environment, about which the hon. Gentleman is especially concerned.

Malcolm Moss: I am most grateful for the Minister’s assurances. We know that he is an extremely honourable man and will carry this through, provided, of course, that he is still in post. He has done some sterling work recently with the Communications Bill and Licensing Bill, and may well be promoted in the next few weeks. To whom will we turn then? For the benefit of the Committee, as well as those who take an interest in these things and who will be avidly reading Hansard tomorrow, if there is a change in circumstances and in the personnel of his Department, the commitment that he has given today about the committee or panel—call it what one will—which he hopes to form very quickly, is really a commitment given by the Secretary of State and the Department. Heads are nodding on the Government Benches. It would be nice to have the words in print and perhaps the Minister can provide them in his response.

Kim Howells: I am happy to give the hon. Gentleman that assurance. I am in constant contact with my boss, the Secretary of State, who has closely examined the Bill as we are very interested in the subject. She is in Liverpool today celebrating with that city the decision to award it capital of culture, so I am giving an undertaking on her behalf that we will move things forward, as I described.

Malcolm Moss: I am most grateful to the Minister for putting that on the record. Does he accept that the areas set out in new clause 3(4)(d)(i) to (v) are vital to the discussions that the panel or committee will undertake? Will he tell the Committee what importance he attaches to the key questions of proportionality and copyright protection? That might help the Committee to determine what it will do next or in preparation for Report. Some reassurance would be helpful.

Kim Howells: I will gladly give that reassurance. As I said, this is a good skeleton for setting up an advisory committee. It certainly addresses some key issues that must be addressed in the consultation before the committee or panel is set up, as well as being the meat of the committee when it begins its work.

Malcolm Moss: I thank the Minister for that assurance. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Chris Mole: I beg to move amendment No. 5, in
clause 8, page 5, line 23, at end insert—
‘()Regulations under this Act which confer an entitlement on the authority controlling the Library of Trinity College, Dublin may not be made unless the Secretary of State is satisfied that the restrictions on use of relevant material imposed by the laws of Ireland are not substantially less restrictive than those imposed by the laws of any part of the United Kingdom.’.
The amendment would add a provision that a deposit with Trinity college Dublin will be required only if the restrictions on the use of the material imposed by Irish law are not substantially less restrictive than those imposed by UK law—the so-called switch. Publishers have rightly been concerned about depositing in a foreign country, and the amendment will ensure that they are as fully protected in Eire as in the UK.

Simon Thomas: Something has just struck me about the amendment. I am looking for confirmation that it applies only to non-print material and that the hon. Gentleman does not foresee a change to the legal deposit of printed books in Dublin.

Malcolm Moss: I should like to add my three-pennyworth to the debate. I understand that defamation laws in Ireland are stronger than ours. Non-print material that could easily be deposited in the UK could cause problems in Dublin that might not arise here. It would be worth thinking at some stage of building into the clause the fact that publishers should take cognisance of the defamation law in Ireland before sending things to Dublin.

Chris Mole: In answer to my hon. Friend the Member for Ceredigion, my understanding is that the amendment would have no effect on printed material.
The hon. Member for North-East Cambridgeshire makes an entirely valid point about defamation, which will be taken into consideration in due course.

Amendment agreed to.

Chris Mole: I beg to move amendment No. 6, in
clause 8, page 5, line 27, at end insert—
‘()In this section “relevant material” has the same meaning as in section (Use of nonprint publications).’
This a technical amendment consequent upon amendment No. 5. It clarifies the term “relevant material” in relation to deposit in the Republic of Ireland.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Chris Mole: The clause now enables different provisions to be made for different purposes, including for different media, descriptions of work and deposit libraries, and it may make exceptions to the general provisions. Regulations will not be made without the consent of the National Assembly for Wales or the Scottish Executive, if the regulations remove or do not confer entitlements on the National Library of Wales
or Scotland, respectively. There will be no obligation to obtain that consent where the national libraries, or the Faculty of Advocates in the case of legal publications, have access to electronic works by electronic means.
In all other cases, the National Assembly and Scottish Ministers must be consulted if the regulations would affect the national libraries in any way. It is also necessary to consult the deposit libraries and those publishers most likely to be affected before regulations can be made. I thank my hon. Friend the Minister for his words of reassurance.

Andrew Lansley: The hon. Gentleman was describing clause 8 in the same terms as the explanatory notes, but that does not reflect precisely the terminology of the clause itself. Subsection (1) states:
“different provision for different purposes ... different media, descriptions of work, deposit libraries or areas”.
What does the hon. Gentleman mean by “or areas”? Does he mean different countries within the United Kingdom, or does he propose some sort of geographical disparity in treatment? I am slightly surprised that those words should have been included. The power to differentiate the various deposit libraries is clear. How would areas be interpreted in that context?

Chris Mole: I hope that the Minister can give us a brief explanation of that. I cannot put my hand on the exact interpretation of area in that context. It may well refer to different areas of works. To finish what I was saying, I reiterate what my hon. Friend the Minister said about approval by the House of draft regulations.

Kim Howells: I am reliably informed—this is not the first time that I have answered questions from the hon. Member for South Cambridgeshire in this way—that what we are discussing may be able to be removed as a result of the removal of clause 7. We will certainly consider that word before Report.

Question put and agreed to.
Clause 8, as amended, ordered to stand part of the Bill.

Clause 9 - INTERPRETATION

Chris Mole: I beg to move amendment No. 7, in
clause 9, page 5, leave out lines 32 and 33.

Joe Benton: With this it will be convenient to discuss the following:
Amendment No. 8, in
clause 9, page 6, line 5, leave out from ‘“publication”’ to end of line 6 and insert—
‘ , in relation to a work—
(a)means the issue of copies of the work to the public, and
(b)includes making the work available to the public by means of an electronic retrieval system;
and related expressions are to be interpreted accordingly;’.

Chris Mole: Amendment No. 7 removes the definition of publication right, because that is no longer referred to. It is consequential on clause 7 not standing part of the Bill. Amendment No. 8 provides clarification. It includes the definition of publication in the Bill, rather than referring back to the Copyright, Designs and Patents Act 1988, and ensures that the definition is in terms of the work to be deposited, rather than the intellectual property rights in that work, as it would be if the definition in the 1988 Act were used. It is a fairly technical amendment. It will not have a substantial effect, but it will make a definite improvement to the Bill.

Amendment agreed to.

Amendment made:No. 8, in
clause 9, page 6, line 5, leave out from ‘“publication”’ to end of line 6 and insert—
‘ , in relation to a work—
(a)means the issue of copies of the work to the public, and
(b)includes making the work available to the public by means of an electronic retrieval system;
and related expressions are to be interpreted accordingly;’.—[Mr. Mole.]

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10 - CONSEQUENTIAL AMENDMENT, REPEALS AND REVOCATION

Chris Mole: I beg to move amendment No. 9, in
clause 10, page 6, line 17, leave out ‘1(1)’ and insert ‘1’.
This amendment merely ensures that the Bill’s format is consistent throughout.

Amendment agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.

Andrew Lansley: Clause 10 brings into effect the schedule. Perhaps I should have done my homework beforehand, but I am unaware of what the British Museum Act 1932 did that requires it to be repealed, and what in the Bill supersedes it. Perhaps we might be informed of that before we pass the provision.

Chris Mole: I am dredging the depths of my memory to answer the first of those questions, but not necessarily the second. As I recall, the British Library was originally part of the British Museum, so I suspect that the Act may have been the creation of the British Library as a separate institution. How that helps me with the second question, I am not so sure.

Andrew Lansley: That is interesting.

Question put and agreed to.

Clause 10, as amended, ordered to stand part of the Bill.

Clauses 11 and 12 ordered to stand part of the Bill.

New Clause 1 - USE OF NON-PRINT PUBLICATIONS

‘(1)Subject to subsection (2), a relevant person may not use relevant material.
(2)The Secretary of State may by regulations make provision permitting the use by relevant persons of relevant material, subject to such conditions as may be prescribed.
(3)Regulations under this section may in particular make provision about—
(a)the purposes for which relevant material may be used;
(b)the time at which or the circumstances in which readers may first use relevant material;
(c)the description of readers who may use relevant material;
(d)the limitations on the number of readers who may use relevant material at any one time (whether by limiting the number of terminals in a deposit library from which readers may at any one time access an electronic publication or otherwise).
(4)In this section—
(a)“reader” means a person who, for the purposes of research or study and with the permission of a deposit library, is on library premises controlled by it;
(b)“relevant material” means—
(i)a copy delivered under section 1 of a work published in a medium other than print;
(ii)a copy delivered pursuant to regulations under section 6 of a computer program or material within section 6(2)(b);
(c)“relevant person” means—
(i)a deposit library or person acting on its behalf;
(ii)a reader;
(d)references to using relevant material include references to copying it and, in the case of a computer program or database, adapting it;
(e)references to a deposit library include references to the Faculty of Advocates.
(5)A contravention of this section is actionable at the suit of a person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.’—[Mr. Mole.]

Brought up, and read the First time.

Chris Mole: I beg to move, That the clause be read a Second time.
After discussion with publishing representatives, it was agreed, as I said when we considered the original clause 7, that that clause was too permissive. Adequate safeguards were requested to protect economic interests and to balance the responsibilities imposed by other clauses. We will therefore replace clause 7 with new clauses 1 and 2.
New clause 1 provides that, unless provided for by regulation, nothing can be done with material once it is deposited. Regulations will be able to specify the purpose for which the material can be used. They will also be able to specify when readers can first use it. That is important in terms of high-value, short-life publications, which my hon. Friend the Member for South Derbyshire and others mentioned. Such a mechanism will allow embargoes to be placed on access to material until its commercial value has diminished. The archive value for the nation will, of course, remain.
Regulations will also specify the types of reader that can access material and will place limitations on the number of readers. In that way, a limit can be placed on the number of terminals—if that continues to be the 
 appropriate terminology—on which material can be accessed and/or the number of readers who can access it at any one time. Subsection (5) provides that any breach of the restrictions on the use of material by libraries will be enforceable by action against them for breach of statutory duty.
I therefore hope that the new clause will be seen as going a long way towards meeting publishers’ concerns.

Simon Thomas: On the whole, I welcome the new clause. I simply take this opportunity to reinforce a couple of points that I made earlier. The Minister was very helpful in responding to a question about preservation and he said that he would reconsider the issue. I am pleased that he said that, but I would like to leave him with just one more thought.
The long title says that the Bill makes
“provision about the use and preservation of material deposited”.
So, “preservation” is in the long title. New clause 1 makes allowance for copying electronic or non-print media, but it is couched in terms of copying for the purposes of users. There is a difference between what an archivist does when copying material for users and for conservation purposes. To take another example, one might record a radio programme on a reel to reel, because that gives the highest quality in analogue terms, although goodness knows how it compares in digital terms. However, the user’s copy would be made on a cassette, which would be played on a little cassette machine. In that way, one can preserve the reel-to-reel recording, and there would be no physical deterioration. Of course, there is no physical deterioration in digital recordings, but there is technical deterioration in the sense that the technology moves on, so that what was the dog’s cojones five years ago is not relevant and cannot be used by the reader today.
There must be a way of ensuring that the Bill allows archivists to make preservation copies as well as user copies. I am slightly concerned that new clause 1 is aimed exclusively at the user, although meeting users’ needs is a legitimate aim of librarianship. However, we must remember that there is a second aim of librarianship—conserving materials for future users. Libraries must meet the needs not only of the now but of the future. The Minister has already said that he will reconsider the issue to see whether everything is okay, but I wanted to emphasise the conservation and preservation arguments.
In moving the clause, the hon. Member for Ipswich, referred to terminals. Five minutes ago, the Minister said that every effort had been made to future-proof the Bill, but is the word “terminals” future proof? I am not sure that it is. I can envisage a time when one will no longer have a terminal but a little palm pilot on which to read a PDF file. We must ensure that we do not rule out ways of co-operating between libraries and secure networks, or even between non-networked networks. Goodness knows what broadband will do for us, when it eventually arrives in Aberystwyth. “Terminals” is a strange word, redolent of computer 
 talk of the 1970s and 1980s. We may need to consider it again. I hope that my remarks will be taken on board between now and Report.

Richard Allan: I wish to raise one brief point on subsection (3)(b), on when readers can first use relevant material. It takes us back to an earlier discussion about small-volume, high-value publications. We said that if they were made available, the publisher might wish to put a bar on access for a period of months so that people would continue to subscribe.
New clause 1 relates specifically to non-printed material, but the same consideration may apply in publishers’ minds to printed material. If a publisher produces a specialist publication with a subscription list for 10,000 copies a year, he will want to be sure that the non-printed version supplied to the deposit library is held back for six months; but that will not happen with the printed version. It would make sense to try to achieve consistency. If we make a sensible concession to publishers by allowing a delay for non-printed materials, the concession should be made also for printed material. I hope that the Minister will take that point on board.

Kim Howells: Those were all useful points. We shall certainly take them on board and see whether we can improve the Bill to reassure the hon. Gentlemen.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 2 - USE OF NONPRINT PUBLICATIONS: COPYRIGHT ETC.

‘(1)In Chapter 3 of Part 1 of the 1988 Act (acts permitted in relation to copyright works), after section 44 insert—
“44ALegal deposit libraries
(1)Copyright is not infringed by the doing of anything in relation to relevant material permitted to be done under regulations under section (Use of nonprint publications) of the Legal Deposit Libraries Act 2003 (in this section, “the 2003 Act”).
(2)The Secretary of State may by regulations make provision excluding, in relation to prescribed activities done in relation to relevant material, the application of such of the provisions of this Chapter as are prescribed.
(3)Regulations under subsection (2) may in particular make provision about—
(a)anything done by prescribed descriptions of reader,
(b)anything done in relation to prescribed descriptions of relevant material,
(c)prescribed descriptions of activities done in relation to relevant material,
(d)such descriptions of such activites done other than in accordance with conditions prescribed in the regulations.
(4)Regulations under this section may make different provision for different purposes.
(5)Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursaunce of a resolution of either House of Parliament.
(6)In this section—
(a)“reader” and “relevant material” have the same meaning as in section (Use of nonprint publications) of the 2003 Act;
(b)“prescribed” means prescribed by regulations made by the Secretary of State.”
(2)In Part III of the Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032) (database right), after Regulation 20 insert—
“Exceptions to database right: deposit libraries
20A.(1)Database right in a database is not infringed by the doing of anything in relation to relevant material permitted to be done under regulations under section (Use of nonprint publications) of the Legal Deposit Libraries Act 2003 (in this Regulation, “the 2003 Act”).
(2)Regulations under section 44A(2) of the 1988 Act exclude the application of paragraph (1) in relation to prescribed activities in relation to relevant material as (and to the extent that) they exclude the application of section 44A(1) of that Act in relation to those activities.
(3)In this Regulation, “relevant material” has the same meaning as in section (Use of nonprint publications) of the 2003 Act.”.’.
—[Mr. Mole.]

Brought up, read the First and Second time, and added to the Bill.

Schedule agreed to.

Bill, as amended, to be reported.

Committee rose at two minutes past Six o’clock.

THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:

Benton, Mr. Joe (Chairman) Allan, Mr. Bryant, Mr. Howells, Dr. Jackson, Mr. Robert Lansley, Mr. Linton, Martin
 Mole, Chris Moss, Mr. Perham, Linda Russell, Christine Thomas, Mr. Simon Todd, Mr. White, Brian